Predatory Lending Report

United States General Accounting Office
GAO Report to the Chairman and Ranking

Minority Member, Special Committee on
Aging, U.S. Senate
January 2004
CONSUMER
PROTECTION
Federal and State
Agencies Face
Challenges in
Combating Predatory
Lending
GAO-04-280
a
January 2004
CONSUMER PROTECTION
Federal and State Agencies Face

Highlights of GAO-04-280, a report to the Challenges in Combating Predatory
Chairman and Ranking Minority Member,
Special Committee on Aging, U.S. Senate Lending
While there is no universally While only one federal law—the Home Ownership and Equity Protection
accepted definition, the term Act—is specifically designed to combat predatory lending, federal agencies
“predatory lending” is used to have taken actions, sometimes jointly, under various federal consumer
characterize a range of practices, protection laws. The Federal Trade Commission (FTC) has played the most
including deception, fraud, or prominent enforcement role, filing 19 complaints and reaching multimillion
manipulation, that a mortgage
broker or lender may use to make a
dollar settlements. The Departments of Justice and Housing and Urban
loan with terms that are Development have also entered into predatory lending-related settlements,
disadvantageous to the borrower. using laws such as the Fair Housing Act and the Real Estate Settlement
No comprehensive data are Procedures Act. Federal banking regulators, including the Federal Reserve
available on the extent of these Board, report little evidence of predatory lending by the institutions they
practices, but they appear most supervise. However, the nonbank subsidiaries of financial and bank holding
likely to occur among subprime companies—financial institutions which account for a significant portion of
mortgages—those made to subprime mortgages—are subject to less federal supervision. While FTC is
borrowers with impaired credit or the primary federal enforcer of consumer protection laws for these entities,
limited incomes. GAO was asked it is a law enforcement agency that conducts targeted investigations. In
to examine actions taken by federal contrast, the Board is well equipped to routinely monitor and examine these
agencies and states to combat
predatory lending; the roles played
entities and, thus, potentially deter predatory lending activities, but has not
by the secondary market and by done so because its authority in this regard is less clear.
consumer education, mortgage
counseling, and loan disclosure As of January 2004, 25 states, as well as several localities, had passed laws to
requirements; and the impact of address predatory lending, often by restricting the terms or provisions of
predatory lending on the elderly. certain high-cost loans; however, federal banking regulators have preempted
some state laws for the institutions they supervise. Also, some states have
strengthened their regulation and licensing of mortgage lenders and brokers.
GAO suggests that Congress
consider providing the Federal The secondary market—where mortgage loans and mortgage-backed
Reserve Board with the authority securities are bought and sold—benefits borrowers by expanding credit, but
to routinely monitor and, as may facilitate predatory lending by allowing unscrupulous lenders to quickly
necessary, examine nonbank sell off loans with predatory terms. In part to avoid certain risks, secondary
mortgage lending subsidiaries of market participants perform varying degrees of “due diligence” to screen out
financial and bank holding loans with predatory terms, but may be unable to identify all such loans.
companies to ensure compliance
with federal consumer protection GAO’s review of literature and interviews with consumer and federal
laws applicable to predatory officials suggest that consumer education, mortgage counseling, and loan
lending. Congress should also disclosure requirements are useful, but may be of limited effectiveness in
consider giving the Board specific
reducing predatory lending. A variety of factors limit their effectiveness,
authority to initiate enforcement
actions under those laws against including the complexity of mortgage transactions, difficulties in reaching
these nonbank mortgage lending target audiences, and counselors’ inability to review loan documents.
subsidiaries.
While there are no comprehensive data, federal, state, and consumer
advocacy officials report that the elderly have disproportionately been
victims of predatory lending. According to these officials and relevant
www.gao.gov/cgi-bin/getrpt?GAO-04-280.
studies, older consumers may be targeted by predatory lenders because,
To view the full product, including the scope among other things, they are more likely to have substantial home equity and
and methodology, click on the link above. may have physical or cognitive impairments that make them more
For more information, contact David G. Wood
at 202-512-8678 or woodd@gao.gov.
vulnerable to an unscrupulous mortgage lender or broker.
Contents
Transmittal Letter 1
Executive Summary 3
Purpose 3
Background 3
Results in Brief 4
Principal Findings 7
Matters for Congressional Consideration 15
Agency Comments and Our Evaluation 16
Chapter 1 18
The Nature and Attributes of Predatory Lending 18
Introduction Emergence of Subprime Mortgage Market 21
The Extent of Predatory Lending Is Unknown 23
Emergence of Predatory Lending As Policy Issue 25
Objectives, Scope, and Methodology 26
Chapter 2 30
Federal Agencies Use a Variety of Laws to Address Predatory
Federal Agencies Have Lending Practices 30
Taken Steps to Address Federal Agencies Have Taken Some Enforcement Actions, but
Banking Regulators Have Focused on Guidance and Regulatory
Predatory Lending, but Changes 36
Face Challenges Jurisdictional Issues Related to Nonbank Subsidiaries Challenge
Efforts to Combat Predatory Lending 49
Conclusions 54
Matters for Congressional Consideration 55
Agency Comments and Our Evaluation 55
Chapter 3 58
States and Localities Have Addressed Predatory Lending through
States Have Enacted Legislation, Regulation, and Enforcement Actions 58
and Enforced Laws to Activities in North Carolina and Ohio Illustrate State Approaches to
Predatory Lending 63
Address Predatory Regulators Have Determined That Federal Law Preempts Some
Lending, but Some State Predatory Lending Laws, but Views on Preemption Differ
Laws Have Been 68
Preempted
Page i GAO-04-280 Predatory Lending

Contents
Chapter 4 72
The Development of a Secondary Market for Subprime Loans Can
The Secondary Market Benefit Consumers 72
May Play a Role in The Secondary Market for Subprime Loans Can Facilitate Predatory
Lending 76
Both Facilitating and Due Diligence Can Help Purchasers Avoid Predatory Loans, but
Combating Predatory Efforts Vary among Secondary Market Participants 77
Lending Assignee Liability May Help Deter Predatory Lending but Can Also
Have Negative Unintended Consequences 82
Chapter 5 88
Many Consumer Education and Mortgage Counseling Efforts Exist,
The Usefulness of but Several Factors Limit Their Potential to Deter Predatory
Consumer Education, Lending 88
Disclosures, Even If Improved, May Be of Limited Use in Deterring
Counseling, and Predatory Lending 96
Disclosures in
Deterring Predatory
Lending May Be
Limited
Chapter 6 99
A Number of Factors Make Elderly Consumers Targets of Predatory
Elderly Consumers Lenders 99
May Be Targeted for Some Education and Enforcement Efforts Focus on Elderly
Consumers 102
Predatory Lending
Appendixes
Appendix I: FTC Enforcement Actions Related to Predatory Lending 106
Appendix II: Comments from the Board of Governors of the Federal
Reserve System 108
Appendix III: Comments from the Department of Justice 111
Appendix IV: Comments from the Department of Housing and Urban
Development 114
Appendix V: Comments from the National Credit Union
Administration 118
Page ii GAO-04-280 Predatory Lending

Contents
Appendix VI: GAO Contacts and Staff Acknowledgments 120

GAO Contacts 120
Staff Acknowledgments 120
Table Table 1: Preemption Determinations Issued by OCC, OTS, and

NCUA Related to Predatory Mortgage Lending Laws 69
Figures Figure 1: Federal Laws and Statutes Used to Address Lending

Practices Generally Considered to be Predatory 31
Figure 2: Structure and Federal Oversight of Mortgage Lenders 50
Figure 3: States and Localities That Have Enacted Predatory
Lending Laws 59
Figure 4: Steps in the Securitization of Residential Mortgages 74
Abbreviations
CRA Community Reinvestment Act

DOJ Department of Justice
ECOA Equal Credit Opportunity Act
FDIC Federal Deposit Insurance Corporation
FHA Federal Housing Administration
FTC Federal Trade Commission
GAO General Accounting Office
GSE government-sponsored enterprise
HMDA Home Mortgage Disclosure Act
HOEPA Home Ownership and Equity Protection Act
HUD Department of Housing and Urban Development
NCUA National Credit Union Administration
OCC Office of the Comptroller of the Currency
OTS Office of Thrift Supervision
RESPA Real Estate Settlement Procedures Act
TILA Truth in Lending Act
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Page iii GAO-04-280 Predatory Lending

A
United States General Accounting Office
Washington, D.C. 20548
January 30, 2004 T

ransmL
ta
ileter
The Honorable Larry E. Craig

Chairman
The Honorable John Breaux
Ranking Minority Member
Special Committee on Aging
United States Senate
This report responds to your request that we evaluate issues related to

predatory home mortgage lending. As you requested, this report reviews
(1) federal laws related to predatory lending and federal agencies’ efforts to
enforce them, (2) actions taken by states to address predatory lending, (3)
the secondary market’s role in facilitating or inhibiting predatory lending,
(4) how consumer education, mortgage counseling, and loan disclosures
may deter predatory lending, and (5) the relationship between predatory
lending activities and elderly consumers. This report includes a Matter for
Congressional Consideration.
As agreed with your office, we plan no further distribution of this report

until 30 days from its issuance date unless you publicly release its contents
sooner. We will then send copies of this report to the Chairman and
Ranking Minority Member of the Senate Committee on Banking, Housing,
and Urban Affairs; the Chairman and Ranking Minority Member of the
House Committee on Financial Services; the Secretary of the Department
of Housing and Urban Development; the Secretary of the Department of the
Treasury; the Chairman of the Federal Trade Commission; the Chairman of
the Board of Governors of the Federal Reserve System; the Chairman of the
Federal Deposit Insurance Corporation; the Comptroller of the Currency;
the Director of the Office of Thrift Supervision; the Chairman of the
National Credit Union Administration; and other interested parties. Copies
will also be made available to others upon request. In addition, this report
will be available at no charge on the GAO Web site at http://www.gao.gov.
Page 1 GAO-04-280 Predatory Lending

This report was prepared under the direction of Harry Medina, Assistant
Director. Please contact Mr. Medina at (415) 904-2000 or me at (202) 512-
8678 if you or your staff have any questions about this report. Major
contributors to this report are listed in appendix VI.
David G. Wood
Director, Financial Markets
and Community Investment

Executive Summary
Purpose Each year, millions of American consumers take out mortgage loans
through mortgage brokers or lenders to purchase homes or refinance
existing mortgage loans. While the majority of these transactions are
legitimate and ultimately benefit borrowers, some have been found to be
“predatory”—that is, to contain terms and conditions that ultimately harm
borrowers. Loans with these features, often targeted at the elderly,
minorities, and low-income homeowners, can strip borrowers of home
equity built up over decades and cause them to lose their homes.
The Chair and Ranking Minority Member of the Senate Special Committee
on Aging asked GAO to examine the efforts under way to combat predatory
lending. GAO reviewed (1) federal laws related to predatory lending and
federal agencies’ efforts to enforce them, (2) actions taken by states to
address predatory lending, (3) the secondary market’s role in facilitating or
inhibiting predatory lending, (4) how consumer education, mortgage
counseling, and loan disclosures may deter predatory lending, and (5) the
relationship between predatory lending activities and elderly consumers.
The scope of this work was limited to home mortgage lending and did not
include other forms of consumer loans. To address these objectives, GAO
reviewed data and interviewed officials from federal, state, and local
agencies and from industry and consumer advocacy groups; examined
federal, state, and local laws; and reviewed relevant literature. At GAO’s
request, federal agencies identified enforcement or other actions they have
taken to address predatory lending. GAO also obtained data from publicly
available databases; the data were analyzed and found to be sufficiently
reliable for this report. Chapter 1 provides the details of the scope and
methodology of this report. The work was conducted between January
2003 and January 2004 in accordance with generally accepted government
auditing standards.
Background While there is no uniformly accepted definition of predatory lending, a

number of practices are widely acknowledged to be predatory. These
include, among other things, charging excessive fees and interest rates,
lending without regard to borrowers’ ability to repay, refinancing
borrowers’ loans repeatedly over a short period of time without any
economic gain for the borrower, and committing outright fraud or
deception—for example, falsifying documents or intentionally

Executive Summary
misinforming borrowers about the terms of a loan.1 These types of

practices offer lenders that originate predatory loans potentially high
returns even if borrowers default, since many of these loans require
excessive up-front fees. No comprehensive data are available on the
incidence of these practices, but banking regulators, consumer advocates,
and industry participants generally agree that predatory loans are most
likely to occur in the market for “subprime” loans. The subprime market
serves borrowers who have limited incomes or poor or no credit histories,
in contrast with the prime market, which encompasses traditional lenders
and borrowers with credit histories that put them at low risk of default.
Originators of subprime loans most often are mortgage and consumer
finance companies but can also be banks, thrifts, and other institutions.
Serious data limitations make the extent of predatory lending difficult to

determine. However, there have been a number of major settlements
resulting from government enforcement actions or private party lawsuits in
the last 5 years that have accused lenders of abusive practices affecting
large numbers of borrowers. For example, in October 2002, Household
International, a large home mortgage lender, agreed to pay up to $484
million to homeowners to settle states’ allegations that it used unfair and
deceptive lending practices to make mortgage loans with excessive interest
and fees. In addition, the rate of foreclosures of subprime loans has
increased substantially since 1990, far exceeding the rate of increase for
subprime originations. Some consumer groups and industry observers
have attributed this development, at least in part, to an increase in abusive
lending, particularly of loans made without regard to borrowers’ ability to
repay. Additionally, groups such as legal services agencies have reported
seeing an ever-greater number of consumers, particularly the elderly and
minorities, who are in danger of losing their homes as a result of predatory
lending practices.
Results in Brief Federal agencies have addressed predatory lending under a variety of
federal laws, including the Home Ownership and Equity Protection Act
(HOEPA), which was an amendment to the Truth in Lending Act (TILA)
designed specifically to combat predatory lending, and other consumer
protection laws such as the Federal Trade Commission Act (FTC Act), TILA
generally, and the Real Estate Settlement Procedures Act (RESPA). The
1
Throughout this report, the terms “predatory lending” and “abusive lending” are used to
refer to such practices.

Executive Summary
Federal Trade Commission (FTC) has played a prominent role because it is

responsible for implementing and enforcing certain federal laws among
lending institutions that are not supervised by federal banking regulators.
As of December 2003, FTC reported that it had taken 19 enforcement
actions against mortgage lenders and brokers for predatory practices,
including some actions that have resulted in multimillion dollar
settlements. The Department of Housing and Urban Development’s (HUD)
enforcement activities related to abusive lending have focused on criminal
fraud in its Federal Housing Administration (FHA) loan insurance program.
The federal banking regulators—the Federal Deposit Insurance
Corporation (FDIC), Board of Governors of the Federal Reserve System
(the Board), Office of the Comptroller of the Currency (OCC), Office of
Thrift Supervision (OTS), and National Credit Union Administration
(NCUA)—report little evidence of predatory lending by the depository
institutions that they supervise. However, concerns exist about nonbank
mortgage lending companies that are owned by financial or bank holding
companies, which have been involved in several notable enforcement
actions involving allegations of abusive lending practices. While FTC has
clear authority to conduct investigations and enforce consumer protection
laws among these nonbank mortgage lending companies, as a law
enforcement agency its role is to investigate possible violations rather than
to act as a supervisory agency with routine monitoring and examination
responsibilities. The Board may be better equipped to monitor and
examine these subsidiaries’ compliance with federal consumer protection
laws and thus to deter predatory lending, but it does not have clear
authority to do so.
According to a database that tracks state and local legislation, 25 states,

11 localities, and the District of Columbia have passed their own laws
addressing predatory lending.2 While these laws vary, most of them
restrict the terms or provisions of mortgage loans originated within their
jurisdictions. In addition, some states have strengthened the regulation and
licensing of mortgage lenders and brokers, and state law enforcement
agencies and banking regulators have taken a number of enforcement
actions under state consumer protection and banking laws. Some federal
regulators have asserted that federal law preempts some state predatory
2
Information relating to state and local laws and their provisions is from a database
maintained by Butera & Andrews, a Washington, D.C., law firm that tracks predatory lending
legislation, and is current as of January 9, 2004. These laws only include state and local laws
that placed actual restrictions on lending. For example, they do not include local
ordinances that consisted solely of a resolution that condemned predatory lending.

Executive Summary
lending laws for the institutions they regulate, stating that federally
chartered lending institutions should be required to comply with a single
uniform set of national regulations. Many state officials and consumer
advocates, however, maintain that federal preemption interferes with the
states’ ability to protect consumers.
The secondary market for mortgage loans—which allows lenders and

investors to sell and buy mortgages and mortgage-backed securities—
provides lenders with an additional source of liquidity and may benefit
borrowers by increasing access to credit and lowering interest rates. But
the secondary market may also inadvertently serve to facilitate predatory
lending, both by providing a source of funds for unscrupulous originators
to quickly sell off loans with predatory terms and by reducing incentives for
these originators to ensure that borrowers can repay their loans.
Secondary market participants may use varying degrees of “due
diligence”—a review and appraisal of legal and financial information—to
avoid purchasing loans with abusive terms. Fannie Mae and Freddie Mac—
which are relatively recent entrants in the subprime market—have due
diligence processes that are designed, in part, to avoid purchasing loans
that may have been harmful to consumers. Other firms may use due
diligence not necessarily to avoid loans that may have harmed consumers
but to avoid loans that are not in compliance with applicable law or that
present undue financial or reputation risks. Some states have passed laws
making secondary market buyers liable for violations by loan originators,
although such laws may have the unintended consequence of reducing the
availability of legitimate credit to consumers.
A number of federal, state, nonprofit, and industry-sponsored organizations

offer consumer education initiatives designed to deter predatory lending
by, among other things, providing information about predatory practices
and working to improve consumers’ overall financial literacy. GAO’s
review of literature and interviews with consumer and federal officials
suggest that while tools such as consumer education, mortgage counseling,
and disclosures are useful, they may be of limited effectiveness in reducing
predatory lending. For instance, consumer education is hampered by the
complexity of mortgage transactions and the difficulty of reaching the
target audience. Similarly, unreceptive consumers and counselors’ lack of
access to relevant loan documents can hamper the effectiveness of
mortgage counseling efforts, while the sheer volume of mortgage
originations each year makes providing universal counseling difficult. And
while efforts are under way to improve the federally required disclosures
associated with mortgage loans, the complexity of mortgage transactions

Executive Summary
also hinders these efforts, especially given the lack of financial

sophistication among many borrowers who are targeted by predatory
lenders.
While there are no comprehensive data, government officials and

consumer advocacy organizations have reported that elderly consumers
have been disproportionately targeted and victimized by predatory lenders.
According to these officials and organizations, elderly consumers appear to
be favored targets for several reasons—for example, because they may
have substantial equity in their homes or live on limited incomes that make
them susceptible to offers for quick access to cash. Further, some seniors
have cognitive or physical impairments such as poor eyesight, hearing, or
mobility that may limit their ability to access competitive sources of credit.
Most consumer financial education efforts seek to serve the general
consumer population, but a few education initiatives have focused
specifically on predatory lending and the elderly. Most legal assistance
related to predatory lending aims at assisting the general population of
consumers, although some is focused on elderly consumers in particular.
Principal Findings
Federal Agencies Have Federal agencies and regulators have used a number of federal laws to
Taken Enforcement and combat predatory lending practices. Among the most frequently used
laws—HOEPA, the FTC Act, TILA, and RESPA—only HOEPA was
Other Actions to Address
specifically designed to address predatory lending. Enacted in 1994,
Predatory Lending, but Face HOEPA places restrictions on certain high-cost loans, including limits on
Challenges prepayment penalties and balloon payments and prohibitions against
negative amortization. However, HOEPA covers only loans that exceed
certain rate or fee triggers, and although comprehensive data are lacking, it
appears that HOEPA covers only a limited portion of all subprime loans.
The FTC Act, enacted in 1914 and amended on numerous occasions,
authorizes FTC to prohibit and take action against unfair or deceptive acts
or practices in or affecting commerce. TILA and RESPA are designed in
part to provide consumers with accurate information about the cost of
credit.
Other federal laws that have been used to address predatory lending
practices include criminal fraud statutes that prohibit certain types of fraud
sometimes used in abusive lending schemes, such as forgery and false

Executive Summary
statements. Also, the Fair Housing Act and Equal Credit Opportunity Act—
which prohibit discrimination in housing-related transactions and the
extension of credit, respectively—have been used in cases against abusive
lenders that have targeted certain protected groups.
Using these or other authorities, federal agencies have taken a number of

enforcement actions and other steps, such as issuing guidance and revising
regulations.
• Among federal agencies, FTC has a prominent role in combating

predatory lending because of its responsibilities in implementing and
enforcing certain federal laws among lending institutions that are not
depository institutions supervised by federal banking regulators. FTC
has reported that it has filed 19 complaints—17 since 1998—alleging
deceptive or other illegal practices by mortgage lenders or brokers and
that some actions have resulted in multimillion dollar settlements. For
example, in 2002 FTC settled a complaint against a lender charged with
engaging in systematic and widespread deceptive and abusive lending
practices. According to FTC staff, close to 1 million borrowers will
receive about $240 million in restitution under the settlement.
• DOJ, which is responsible for enforcing certain federal civil rights laws,
has filed an enforcement action on behalf of the FTC and identified two
additional enforcement actions it has taken that are related to predatory
mortgage lending practices. The statutes DOJ enforces only address
predatory lending practices when they are alleged to be discriminatory.
• HUD has undertaken enforcement activities related to abusive lending

that primarily focus on reducing losses to the FHA insurance fund, most
notably violations of criminal fraud statutes and FHA regulations
through “property flipping” schemes, which in some cases can harm
borrowers by leaving them with mortgage loans that may far exceed the
value of their homes.3 HUD has also taken three enforcement actions in
abusive mortgage lending cases for violations of RESPA’s prohibitions
on certain types of fees.
3
HUD’s FHA mortgage insurance program makes loans more readily available for low- and
moderate-income families by providing mortgage insurance to purchase or refinance a
home. Lending institutions such as mortgage companies and banks fund the loans.

Executive Summary
• Federal banking regulators have stated that their monitoring and

examination activities have uncovered little evidence of predatory
lending in federally regulated depository institutions. Four of the five
federal banking regulators reported taking no formal enforcement
actions involving predatory mortgage lending against the institutions
they regulate, while the fifth—OCC—reported that it has taken one
formal enforcement action against a bank engaged in abusive mortgage
lending. Regulators noted that they have taken informal enforcement
actions to address questionable practices raised during the examination
process and required their institutions to take corrective action.
• The banking regulators have also issued guidance to the institutions

they supervise on avoiding direct or indirect involvement in predatory
lending. In addition, the Board has made changes to its regulations
implementing HOEPA that, among other things, increase the number of
loans HOEPA covers. The Board also made changes to its regulations
implementing the Home Mortgage Disclosure Act that make it easier to
analyze potential patterns of predatory lending.
Federal agencies and banking regulators have coordinated their efforts to

address predatory lending on certain occasions through participation in
interagency working groups and through joint enforcement actions. For
example, FTC, DOJ, and HUD coordinated to take an enforcement action
against Delta Funding Corporation, with each agency investigating and
bringing actions for violations of the laws within its jurisdiction.
Issues related to federal oversight and regulation of certain nonbank

mortgage lenders may challenge efforts to combat predatory lending.
Nonbank mortgage lending companies owned by financial or bank holding
companies (nonbank mortgage lending subsidiaries), such as finance and
mortgage companies, account for an estimated 24 percent of subprime loan
orginations, according to HUD, and some have been the target of notable
federal and state enforcement actions involving allegations of abusive
lending.4 FTC is the primary federal enforcer of consumer protection laws
for these nonbank subsidiaries, but it is a law enforcement rather than
supervisory agency. Thus, FTC’s mission and resource allocations are
focused on conducting investigations in response to consumer complaints
and other information rather than on routine monitoring and examination
4
These nonbank subsidiaries are owned by the financial holding companies or bank holding
companies and are not the direct operating subsidiaries of the bank itself.

Executive Summary
responsibilities. In contrast, the Board conducts periodic examinations of

financial and bank holding companies and, under the Bank Holding
Company Act, is authorized to monitor and examine the subsidiaries of a
bank holding company under certain circumstances. However, this
authority does not clearly extend to routine examinations of nonbank
subsidiaries of these holding companies with regard to laws pertinent to
predatory lending. In addition, the Board does not have specific authority
under pertinent federal consumer protection laws to institute an
enforcement action against a nonbank subsidiary of a financial or bank
holding company. Granting the Board concurrent enforcement authority
with the FTC for these nonbank subsidiaries of holding companies could
help deter some predatory lending.
Many States Have Passed In response to concerns about the growth of predatory lending and the
Laws Addressing Predatory limitations of existing laws, 25 states, the District of Columbia, and 11
localities have passed their own laws addressing predatory lending
Lending, but Federal practices, according to a database that tracks such laws. Most of these
Agencies Have Preempted laws regulate and restrict the terms and characteristics of high-cost loans—
Some Statutes that is, loans that exceed certain rate or fee thresholds. While some state
statutes follow the thresholds for covered loans established in HOEPA,
many set lower thresholds in order to cover more loans than the federal
statute. The statutes vary, but they generally cover a variety of predatory
practices, such as balloon payments and prepayment penalties, and some
include restrictions on such things as mandatory arbitration clauses that
can restrict borrowers’ ability to obtain legal redress through the courts.
Some states have also increased the regulation of and licensing

requirements for mortgage lenders and brokers, in part to address
concerns that some unscrupulous lenders and brokers have been
responsible for lending abuses and that these entities have not been
adequately regulated. For example, some states have increased the
educational requirements that lenders and brokers must meet in order to
obtain a license. In recent years, state law enforcement agencies and
banking regulators have also taken a number of actions against mortgage
lenders involving predatory lending. For example, an official from
Washington State’s Department of Financial Institutions reported that the
department had taken several enforcement actions to address predatory
lending, including one that resulted in a lender being ordered to return
more than $700,000 to 120 Washington borrowers for allegedly deceiving
them and charging prohibited fees.

Executive Summary
Three federal banking regulators—NCUA, OCC, and OTS—have issued

opinions stating that federal laws preempt some state predatory lending
laws for the institutions that they regulate. The regulators note that such
preemption creates a more uniform regulatory framework, relieves lending
institutions of the burden of complying with a hodgepodge of state and
federal laws, and avoids state laws that may restrict legitimate lending
activities. State officials and consumer advocates that oppose preemption
argue that federal laws do not effectively protect consumers against
predatory lending practices and that federal regulators do not devote
sufficient resources toward enforcement of consumer protection laws for
the institutions they oversee.
The Secondary Market May In 2002, an estimated 63 percent of subprime loans, worth $134 billion,
Benefit Consumers but Can were securitized and sold on the secondary market.5 The existence of a
secondary market for subprime loans has benefited consumers by
Also Facilitate Predatory
increasing the sources of funds available to subprime lenders, potentially
Lending lowering interest rates and origination costs for subprime loans. However,
the secondary market may also inadvertently facilitate predatory lending
by providing a source of funds for unscrupulous originators, allowing them
to quickly sell off loans with predatory terms. Further, originators of
subprime mortgage loans generally make their profits from high origination
fees, and the existence of a secondary market may reduce the incentive for
these lenders to ensure that borrowers can repay.
Purchasers of mortgage loans undertake a process of due diligence

designed to avoid legal, financial, and reputational risk. Prior to the sale,
purchasers typically review electronic data containing information on the
loans, such as the loan amount, interest rate, and credit score of the
borrower. Purchasers also often physically review a sample of individual
loans, including such items as the loan application and settlement forms.
However, the degree of due diligence purchasers undertake varies. Fannie
Mae and Freddie Mac—which are estimated to account for a relatively
small portion of the secondary market for subprime loans—told us that
they undertake a series of measures aimed at avoiding the purchase of
5
Originators of mortgage loans—which can include banks, other depository institutions, and
mortgage lenders that are not depository institutions—may keep the loans or sell them on
the secondary market. Secondary market purchasers may then hold the loans or pool
together a group of loans and issue a security that is backed by a pool of mortgages (a
“mortgage-backed security”).

Executive Summary
loans with abusive characteristics that may have harmed borrowers. In

contrast, according to some market participants, the due diligence of other
secondary market purchasers of residential mortgages may be more
narrowly focused on the creditworthiness of the loans and on their
compliance with federal, state, and local laws. However, even the most
stringent efforts cannot uncover some predatory loans. For example, due
diligence by secondary market purchasers may be unable to uncover fraud
that occurred during the loan underwriting or approval process, some
excessive or unwarranted fees, or loan flipping.
Under some state and local legislation, purchasers of mortgages or

mortgage-backed securities on the secondary market may be liable for
violations committed by the originating lenders—referred to as “assignee
liability” provisions. HOEPA contains such a provision for loans above
certain thresholds, as do the antipredatory lending laws in at least eight
states and the District of Columbia, according to a database that tracks
state predatory lending laws. Assignee liability is intended to discourage
secondary market participants from purchasing loans that may have
predatory features and to provide an additional source of redress for
victims of abusive lenders. However, according to some secondary market
participants, assignee liability can also discourage legitimate lending
activity. Secondary market purchasers that are unwilling to assume the
potential risks associated with assignee liability provisions have stopped
purchasing, or announced their intention to stop purchasing, mortgages
originated in areas covered by such provisions. Credit rating agencies—
whose decisions influence securitizers’ ability to sell the securities—have
asserted that assignee liability provisions can make it difficult for them to
measure the risk associated with pools of loans. Assignee liability
provisions of the Georgia Fair Lending Act were blamed for causing several
participants in the mortgage lending industry to withdraw from the market,
and the provisions were subsequently repealed.
The Usefulness of In response to widespread concern about low levels of financial literacy
Consumer Education, among consumers, federal agencies have conducted and funded financial
education for consumers as a means of improving consumers’ financial
Counseling, and Disclosures
literacy and, in some cases, raising consumers’ awareness of predatory
in Deterring Predatory lending practices. For example, FDIC sponsors a financial literacy
Lending May Be Limited program, MoneySmart, which is designed for low- and moderate-income
individuals with little banking experience. Other federal agencies,
including the Board, FTC, HUD, and OTS, engage in activities such as
distributing educational literature, working with community groups, and

Executive Summary
providing institutions they regulate with guidance on encouraging financial

literacy. Federal agencies have also taken some actions to coordinate their
efforts to educate consumers about predatory lending. For example, in
October 2003, the Interagency Task Force on Fair Lending, which consists
of 10 federal agencies, published a brochure that alerts consumers to the
potential pitfalls of home equity loans, particularly high-cost loans. A
number of states, nonprofits, and trade organizations also conduct
consumer financial education activities, which sometimes focus
specifically on raising awareness about predatory lending.
While representatives of the mortgage lending industry and consumer

groups have noted that financial education may make some consumers less
susceptible to abusive lending practices, GAO’s review of literature and
interviews with consumer and federal officials suggest that consumer
education by itself has limits as a tool for deterring predatory lending.
First, mortgage loans are complex financial transactions, and many
different factors—including the interest rate, fees, provisions of the loan,
and situation of the borrower—determine whether a loan is in a borrower’s
best interests. Even an excellent campaign of consumer education is
unlikely to provide less sophisticated consumers with enough information
to properly assess whether a loan contains abusive terms. Second,
predatory lenders and brokers tend to use aggressive marketing tactics that
are designed to confuse consumers. Broad-based campaigns to make
consumers aware of predatory lending may not be sufficient to prevent
many consumers—particularly those who may be uneducated or
unsophisticated in financial matters—from succumbing to such tactics.
Finally, the consumers who are often the targets of predatory lenders are
also some of the hardest to reach with educational information.
Prepurchase mortgage counseling—which can offer a “third party” review

of a prospective mortgage loan—may help borrowers avoid predatory
loans, in part by alerting consumers to predatory loan terms and practices.
HUD supports a network of approximately 1,700 HUD-approved counseling
agencies across the country and in some cases provides funding for their
activities. While beneficial, the role of mortgage counseling in preventing
predatory lending is likely to be limited. Borrowers do not always attend
such counseling, and when they do, counselors may not have access to all
of the loan documents needed to review the full final terms and provisions
before closing. In addition, counseling may be ineffective against lenders
and brokers engaging in fraudulent practices, such as falsifying
applications or loan documents, that cannot be detected during a
prepurchase review of mortgage loan documents.

Executive Summary
Finally, disclosures made during the mortgage loan process, while

important, may be of limited usefulness in reducing the incidence of
predatory lending practices. TILA and RESPA have requirements covering
the content, form, and timing of the information that must be disclosed to
borrowers. However, industry and consumer advocacy groups have
publicly expressed dissatisfaction with the current disclosure system.
HUD issued proposed rules in July 2002 intended to streamline the
disclosure process and make disclosures more understandable and timely,
and debate over the proposed rules has been contentious. Although
improving loan disclosures would undoubtedly have benefits, once again
the inherent complexity of loan transactions may limit any impact on the
incidence of predatory lending practices. Moreover, even a relatively clear
and transparent system of disclosures may be of limited use to borrowers
who lack sophistication about financial matters, are not highly educated, or
suffer physical or mental infirmities. Finally, as with mortgage counseling,
revised disclosure requirements would not necessarily help protect
consumers against lenders and brokers that engage in outright fraud or that
mislead borrowers about the terms of loans in the disclosure documents
themselves.
Predatory Lenders May Consistent observational and anecdotal evidence, along with some limited
Target Elderly Consumers data, indicates that, for a variety of reasons, elderly homeowners are
disproportionately the targets of predatory lending. Abusive lenders tend
to target homeowners who have substantial equity in their homes, as many
older homeowners do. In addition, some brokers and lenders aggressively
market home equity loans as a source of cash, particularly for older
homeowners who may have limited incomes but require funds for major
home repairs or medical expenses. Moreover, diseases and physical
impairments associated with aging—such as declining vision, hearing, or
mobility—can restrict elderly consumers’ ability to access financial
information and compare credit terms. Some older persons may also have
diminished cognitive capacity, which can impair their ability to
comprehend and make informed judgments on financial issues. Finally,
several advocacy groups have noted that some elderly people lack social
and family support systems, potentially increasing their susceptibility to
unscrupulous lenders who may market loans by making home visits or
offering other personal contact.
Because the elderly may be more susceptible to predatory lending,

government agencies and consumer advocacy organizations have focused
some of their education efforts on this population. For example, the

Executive Summary
Justice Department offers on its Web site the guide “Financial Crimes
Against the Elderly,” which includes references to predatory lending. The
Department of Health and Human Services’ Administration on Aging
provides grants to state and nonprofit agencies for programs aimed at
preventing elder abuse, including predatory lending practices targeting
older consumers. The AARP, which represents Americans age 50 and over,
sponsors a number of financial education efforts, including a borrower’s kit
that contains tips for avoiding predatory lending.
Consumer protection and fair lending laws that have been used to address
predatory lending do not generally have provisions specific to elderly
persons, although the Equal Credit Opportunity Act does prohibit unlawful
discrimination on the basis of age in connection with any aspect of a credit
transaction. Federal and state enforcement actions and private class-
action lawsuits involving predatory lending generally seek to provide
redress to large groups of consumers. Little comprehensive data exist on
the age of consumers involved in these actions, but a few cases have
involved allegations of predatory lending targeting elderly borrowers. For
example, FTC, six states, AARP, and private plaintiffs settled a case with
First Alliance Mortgage Company in March 2002 for more than $60 million.
An estimated 28 percent of the 8,712 borrowers represented in the class-
action suit were elderly. The company was accused of using
misrepresentation and unfair and deceptive practices to lure senior citizens
and those with poor credit histories into entering into abusive loans. In
addition, some nonprofit groups—such as the AARP Foundation Litigation,
the National Consumer Law Center, and South Brooklyn Legal Services’
Foreclosure Prevention Project—provide legal services that focus, in part,
on helping elderly victims of predatory lending.
Matters for To enable greater oversight of and potentially deter predatory lending from
occurring at certain nonbank lenders, Congress should consider making
Congressional appropriate statutory changes to grant the Board of Governors of the
Consideration Federal Reserve System the authority to routinely monitor and, as
necessary, examine the nonbank mortgage lending subsidiaries of financial
and bank holding companies for compliance with federal consumer
protection laws applicable to predatory lending practices. Also, Congress
should consider giving the Board specific authority to initiate enforcement
actions under those laws against these nonbank mortgage lending
subsidiaries.

Executive Summary
Agency Comments and GAO provided a draft of this report to the Board, DOJ, FDIC, FTC, HUD,
NCUA, OCC, OTS, and the Department of the Treasury for review and
Our Evaluation comment. The agencies provided technical comments that have been
incorporated where appropriate. In addition, the Board, DOJ, FDIC, FTC,
HUD, and NCUA provided general comments, which are discussed in
greater detail at the end of chapter 2. The written comments of the Board,
DOJ, HUD, and NCUA are printed in appendixes II through V.
The Board commented that, while the existing structure has not been a
barrier to Federal Reserve oversight, the approach recommended in our
Matter for Congressional Consideration would likely be beneficial by
catching some abusive practices that might not be caught otherwise. The
Board also noted that the approach would pose tradeoffs, such as different
supervisory schemes being applied to nonbank mortgage lenders based on
whether or not they are part of a holding company, and additional costs.
Because nonbank mortgage lenders that are part of a financial or bank
holding company currently can be examined by the Board in some
circumstances, they are already subject to a different supervisory scheme
than other such lenders. We agree that the costs to the lenders and the
Board would increase to the extent the Board exercised any additional
authority to monitor and examine nonbank lenders, and believe that
Congress should consider both the potential costs and benefits of clarifying
the Board’s authorities.
The FTC expressed concern that our report could give the impression that
we are suggesting that Congress consider giving the Board sole
jurisdiction—rather than concurrent jurisdiction with FTC—over nonbank
subsidiaries of holding companies. Our report did not intend to suggest
that the Congress make any change that would necessarily affect FTC’s
existing authority for these entities, and we modified the report to clarify
this point.
DOJ commented that the report will be helpful in assessing the

department’s role in the federal government’s efforts to develop strategies
to combat predatory lending. DOJ disagreed with our inclusion in the
report of “property or loan flips,” which it said was a traditional fraud
scheme but not a type of predatory lending. As we noted in our report,
there is no precise definition of predatory lending. We incorporated a
discussion of property flipping—quick resales of recently sold FHA
properties—because HUD officials characterize some of these schemes as
involving predatory practices that can harm borrowers. We included loan

Executive Summary
flipping—the rapid and repeated refinancing of a loan without benefit to

the borrower—in our report because this is widely characterized in the
literature and by federal, state, and nonprofit agency officials as a
predatory lending practice.
FDIC noted that our Matter for Congressional Consideration focuses on

nonbank subsidiaries of holding companies even though these entities
comprise, according to HUD, only about 20 percent of all subprime lenders.
We recognize that our Matter does not address all subprime lenders or
other institutions that may be engaging in predatory lending, but believe it
represents a potential step in addressing predatory lending among a
significant segment of mortgage lenders. NCUA said that the report
provides a useful discussion of the issues and the agency concurs with our
Matter for Congressional Consideration. HUD, in its comment letter,
described a variety of actions it has taken that it characterized as
combating predatory lending, particularly with regard to FHA-insured
loans.

Chapter 1
Introduction Chapte1
r
In recent years, abuses in home mortgage lending—commonly referred to

as “predatory lending”—have increasingly garnered the attention and
concern of policymakers, consumer advocates, and participants in the
mortgage lending industry.1 Once relatively rare, government enforcement
actions and private party lawsuits against institutions accused of abusive
home mortgage lending have increased dramatically in the last 10 years. In
2002 alone, there were dozens of settlements resulting from accusations of
abusive lending. In the largest of these, a major national mortgage lender
agreed to pay up to $484 million to tens of thousands of affected
consumers.
The Nature and Predatory lending is an umbrella term that is generally used to describe
cases in which a broker or originating lender takes unfair advantage of a
Attributes of Predatory borrower, often through deception, fraud, or manipulation, to make a loan
Lending that contains terms that are disadvantageous to the borrower. While there
is no universally accepted definition, predatory lending is associated with
the following loan characteristics and lending practices:
• Excessive fees. Abusive loans may include fees that greatly exceed the
amounts justified by the costs of the services provided and the credit
and interest rate risks involved. Lenders may add these fees to the loan
amounts rather than requiring payment up front, so the borrowers may
not know the exact amount of the fees they are paying.
• Excessive interest rates. Mortgage interest rates can legitimately vary

based on the characteristics of borrowers (such as creditworthiness)
and of the loans themselves. However, in some cases, lenders may
charge interest rates that far exceed what would be justified by any risk-
based pricing calculation, or lenders may “steer” a borrower with an
excellent credit record to a higher-rate loan intended for borrowers with
poor credit histories.
• Single-premium credit insurance. Credit insurance is a loan product

that repays the lender should the borrower die or become disabled. In
the case of single- premium credit insurance, the full premium is paid all
at once—by being added to the amount financed in the loan—rather
than on a monthly basis. Because adding the full premium to the
1
Throughout this report, the terms predatory lending and abusive lending are used
interchangeably.

Chapter 1
Introduction
amount of the loan unnecessarily raises the amount of interest

borrowers pay, single-premium credit insurance is generally considered
inherently abusive.
• Lending without regard to ability to repay. Loans may be made

without regard to a borrower’s ability to repay the loan. In these cases,
the loan is approved based on the value of the asset (the home) that is
used as collateral. In particularly egregious cases, monthly loan
payments have equaled or exceeded the borrower’s total monthly
income. Such lending can quickly lead to foreclosure of the property.
• Loan flipping. Mortgage originators may refinance borrowers’ loans

repeatedly in a short period of time without any economic gain for the
borrower. With each successive refinancing, these originators charge
high fees that “strip” borrowers’ equity in their homes.
• Fraud and deception. Predatory lenders may perpetrate outright fraud

through actions such as inflating property appraisals and doctoring loan
applications and settlement documents. Lenders may also deceive
borrowers by using “bait and switch” tactics that mislead borrowers
about the terms of their loan. Unscrupulous lenders may fail to disclose
items as required by law or in other ways may take advantage of
borrowers’ lack of financial sophistication.
• Prepayment penalties. Penalties for prepaying a loan are not

necessarily abusive, but predatory lenders may use them to trap
borrowers in high-cost loans.
• Balloon payments. Loans with balloon payments are structured so that

monthly payments are lower but one large payment (the balloon
payment) is due when the loan matures. Predatory loans may contain a
balloon payment that the borrower is unlikely to be able to afford,
resulting in foreclosure or refinancing with additional high costs and
fees. Sometimes, lenders market a low monthly payment without
adequate disclosure of the balloon payment.
Predatory lending is difficult to define partly because certain loan

attributes may or may not be abusive, depending on the overall context of
the loan and the borrower. For example, although prepayment penalties
can be abusive in the context of some loans, in the context of other loans
they can benefit borrowers by reducing the overall cost of loans by
reducing the lender’s prepayment risk.

Chapter 1
Introduction
According to federal and industry officials, most predatory mortgage

lending involves home equity loans or loan refinancings rather than loans
for home purchases. Homeowners may be lured into entering refinance
loans through aggressive solicitations by mortgage brokers or lenders that
promise “savings” from debt consolidation or the ability to “cash out” a
portion of a borrower’s home equity. Predatory lending schemes may also
involve home improvement contractors that work in conjunction with a
lender. The contractor may offer to arrange financing for necessary repairs
or improvements, and then perform shoddy work or fail to complete the
job, while leaving the borrower holding a high-cost loan. Abuses in loan
servicing have also increasingly become a concern. Abusive mortgage
lenders or servicing agents may charge improper late fees, require
unjustified homeowner’s insurance, or not properly credit payments. In
November 2003, the Federal Trade Commission (FTC) and the Department
of Housing and Urban Development (HUD) reached a settlement with a
large national mortgage servicer, Fairbanks Capital, after the company was
accused of unfair, deceptive, and illegal practices in the servicing of
mortgage loans. The settlement will provide $40 million to reimburse
consumers.
Originating lenders or brokers that engage in abusive practices can make

high profits through the excessive points and fees that they charge,
particularly when borrowers make their payments regularly. Even when a
loan enters foreclosure, the originator of a predatory loan may still make a
profit due to the high up-front fees it has already collected. Moreover, a
lender that sells a loan in the secondary market shortly after origination no
longer necessarily faces financial risk from foreclosure.2 Similarly, a
mortgage broker that collects fees up front is not affected by foreclosure of
the loan.
According to HUD and community groups, predatory lending not only

harms individual borrowers but also can weaken communities and
neighborhoods by causing widespread foreclosures, which reduce property
values. Predatory lending also serves to harm the reputation of honest and
legitimate lenders, casting them in the same suspicious light as those
making unfair loans and thus increasing their reluctance to extend credit to
the traditionally underserved communities that are often targeted by
abusive lenders.
2
As discussed in chapter 4, the secondary market is where existing mortgage loans and
mortgage-backed securities are sold and purchased.

Chapter 1
Introduction
Emergence of The market for mortgage loans has evolved considerably over the past 20
years. Among the changes has been the emergence of a market for
Subprime Mortgage subprime mortgage loans. Most mortgage lending takes place in what is
Market known as the prime market, which encompasses traditional lenders and
borrowers with credit histories that put them at low risk of default. In
contrast, the subprime market serves borrowers who have poor or no
credit histories or limited incomes, and thus cannot meet the credit
standards for obtaining loans in the prime market.3 It is widely accepted
that the overwhelming majority of predatory lending occurs in the
subprime market, which has grown dramatically in recent years. Subprime
mortgage originations grew from $34 billion in 1994 to more than $213
billion in 2002 and in 2002 represented 8.6 percent of all mortgage
originations, according to data reported by the trade publication Inside
B&C Lending. Several factors account for the growth of the subprime
market, including changes in tax law that increased the tax advantages of
home equity loans, rapidly increasing home prices that have provided many
consumers with substantial home equity, entry into the subprime market by
companies that had previously made only prime loans, and the expansion
of credit scoring and automated underwriting, which has made it easier for
lenders to price the risks associated with making loans to credit-impaired
borrowers.
Originating lenders charge higher interest rates and fees for subprime loans
than they do for prime loans to compensate for increased risks and for
higher servicing and origination costs. In many cases, increased risks and
costs justify the additional cost of the loan to the borrower, but in some
cases they may not. Because subprime loans involve a greater variety and
complexity of risks, they are not the uniformly priced commodities that
prime loans generally are. This lack of uniformity makes comparing the
costs of subprime loans difficult, which can increase borrowers’
vulnerability to abuse.
However, subprime lending is not inherently abusive, and certainly all

subprime loans are not predatory. Although some advocacy groups claim
that subprime lending involves abusive practices in a majority of cases,
most analysts believe that only a relatively small portion of subprime loans
3
There is no uniform definition across the lending industry for what characterizes a loan as
subprime. Subprime loans are generally given to borrowers with credit scores that are
below a certain threshold, but that threshold can vary according to the policies of the
individual lender.

Chapter 1
Introduction
contain features that may be considered abusive. In addition, according to

officials at HUD and the Department of the Treasury, the emergence of a
subprime mortgage market has enabled a whole class of credit-impaired
borrowers to buy homes or access the equity in their homes. At the same
time, however, federal officials and consumer advocates have expressed
concerns that the overall growth in subprime lending and home equity
lending in general has been accompanied by a corresponding increase in
predatory lending. For example, lenders and brokers may use aggressive
sales and marketing tactics to convince consumers who need cash to enter
into a home equity loan with highly disadvantageous terms.
Originators of subprime loans are most often mortgage and consumer

finance companies, but can also be banks, thrifts, and other institutions.
Some originators focus primarily on making subprime loans, while others
offer a variety of prime and subprime loans. According to HUD, 178
lenders concentrated primarily on subprime mortgage lending in 2001.
Fifty-nine percent of these lenders were independent mortgage companies
(mortgage bankers and finance companies), 20 percent were nonbank
subsidiaries of financial or bank holding companies, and the remainder
were other types of financial institutions. Only 10 percent were federally
regulated banks and thrifts.4
About half of all mortgage loans are made through mortgage brokers that
serve as intermediaries between the borrower and the originating lender.
According to government and industry officials, while the great majority of
mortgage brokers are honest, some play a significant role in perpetrating
predatory lending. A broker can be paid for his services from up-front fees
directly charged to the borrower and/or through fees paid indirectly by the
borrower through the lender in what is referred to as a “yield spread
premium.”5 Some consumer advocates argue that compensating brokers
this way gives brokers an incentive to push loans with higher interest rates
and fees. Brokers respond that yield spread premiums in fact allow them
to reduce the direct up-front fees they charge consumers.
4
HUD annually identifies a list of lenders that specialize in either subprime or manufactured
home lending. HUD occasionally updates data related to past years. The information
provided here was based on data available as of November 7, 2003.
5
A “yield spread premium” is a payment a mortgage broker receives from a lender based on
the difference between the actual interest rate on the loan and the rate the lender would
have accepted on the loan given the risks and costs involved. The higher the actual loan rate
compared with the acceptable loan rate, the higher the yield spread premium.

Chapter 1
Introduction
The Extent of Currently no comprehensive and reliable data are available on the extent of
predatory lending nationwide, for several reasons. First, the lack of a
Predatory Lending Is standard definition of what constitutes predatory lending makes it
Unknown inherently difficult to measure. Second, any comprehensive data collection
on predatory lending would require access to a representative sample of
loans and to information that can only be extracted manually from the
physical loan files. Given that such records are not only widely dispersed
but also generally proprietary, to date comprehensive data have not been
collected.6 Nevertheless, policymakers, advocates, and some lending
industry representatives have expressed concerns in recent years that
predatory lending is a significant problem. Although the extent of
predatory lending cannot be easily quantified, several indicators suggest
that it may be prevalent. Primary among these indicators are legal
settlements, foreclosure patterns, and anecdotal evidence.
In the past 5 years, there have been a number of major settlements

resulting from government enforcement actions and private party lawsuits
accusing lenders of abusive lending practices affecting large numbers of
borrowers. Among the largest of these settlements have been the
following:
• In October 2002, the lender Household International agreed to pay up to

$484 million to homeowners across the nation to settle allegations by
states that it used unfair and deceptive lending practices to make
mortgage loans with excessive interest and charges.
• In September 2002, Citigroup agreed to pay up to $240 million to resolve

charges by FTC and private parties that Associates First Capital
Corporation and Associates Corporation of North America (The
6
One of the few studies that sought to quantify the extent of predatory lending was
“Quantifying the Economic Cost of Predatory Lending,” E. Stein, Coalition for Responsible
Lending, July 25, 2001 (revised Oct. 30, 2001). We were not able to verify the reliability of
the study’s data, which were based on several sources. Other empirical data appears in a
study by Freddie Mac on its automated underwriting system, “Automated Underwriting:
Making Mortgage Lending Simpler and Fairer for America’s Families,” September 1996. The
company evaluated a sample of 15,000 subprime mortgage loans originated by four financial
institutions and provided preliminary estimates that between 10 and 35 percent of the
borrowers who received these loans could have qualified for a loan in the prime market.
Some consumer advocates have said these data suggest that some borrowers may be
“steered” to high-cost loans even though they qualify for conventional loans with better
terms. A Freddie Mac official told us that the data are insufficient to necessarily draw that
conclusion.

Chapter 1
Introduction
Associates) engaged in systematic and widespread deceptive and

abusive lending practices.7 According to FTC staff, under the settlement
close to 1 million borrowers will receive compensation for loans that
misrepresented insurance products and that contained other abusive
terms.
• In response to allegations of deceptive marketing and abusive lending,

First Alliance Mortgage Company entered into a settlement in March
2002 with FTC, six states, and private parties to compensate nearly
18,000 borrowers more than $60 million dollars.
Further, between January 1998 and September 1999, the foreclosure rate
for subprime loans was more than 10 times the foreclosure rate for prime
loans.8 While it would be expected that loans made to less creditworthy
borrowers would result in some increased rate of foreclosure, the
magnitude of this difference has led many analysts to suggest that it is at
least partly the result of abusive lending, particularly of loans made without
regard to the borrower’s ability to repay. Moreover, the rate of foreclosures
of subprime mortgage loans has increased substantially since 1990, far
exceeding the rate of increase for subprime originations. A study
conducted for HUD noted that while the increased rate in subprime
foreclosures could be the result of abusive lending, it could also be the
result of other factors, such as an increase in subprime loans that are made
to the least creditworthy borrowers.9
In the early 1990s, anecdotal evidence began to emerge suggesting that

predatory lending was on the rise. Legal services agencies throughout the
country reported an increase in clients who were facing foreclosure as a
result of mortgage loans that included abusive terms and conditions. These
agencies noted that for the first time they were seeing large numbers of
7
Citigroup acquired Associates First Capital Corporation and Associates Corporation of
North America in November 2000 and merged The Associates’ consumer finance operations
into its subsidiary, CitiFinancial Credit Company.
8
See HUD-Treasury Task Force on Predatory Lending, Curbing Predatory Home Mortgage
Lending: A Joint Report (June 2000), 34-35. The report noted that from January 1998
through September 1999, foreclosure rates averaged 0.2 percent for prime mortgage loans
and 2.6 percent for subprime mortgage loans.
9
Harold L. Bunce, Debbie Gruenstein, Christopher E. Herbert, and Randall M. Scheessele,
“Subprime Foreclosures: The Smoking Gun of Predatory Lending?” Paper presented at the
U.S. Department of Housing and Urban Development conference “Housing Policy in the
New Millennium,” Crystal City, VA, October 2000.

Chapter 1
Introduction
consumers, particularly elderly and minority borrowers, who were facing

the loss of homes they had lived in for many years because of a high-cost
refinancing. Similar observations were also reported extensively at forums
on predatory lending sponsored by HUD and the Department of the
Treasury in five cities during 2000, at hearings held in four cities during
2000 by the Board of Governors of the Federal Reserve System (the Board),
and at congressional hearings on the issue in 1998, 2001, 2002, and 2003.10
Federal officials and consumer advocates maintain that predatory lenders

often target certain populations, including the elderly and some low-
income and minority communities. Some advocates say that in many
cases, predatory lenders target communities that are underserved by
legitimate institutions, such as banks and thrifts, leaving borrowers with
limited credit options. According to government officials and legal aid
organizations, predatory lending appears to be more prevalent in urban
areas than in rural areas, possibly because of the concentration of certain
target groups in urban areas and because the aggressive marketing tactics
of many predatory lenders may be more efficient in denser
neighborhoods.11
Emergence of The federal government began addressing predatory home mortgage

lending as a significant policy issue in the early 1990s. In 1994, the Congress
Predatory Lending As passed the Home Ownership and Equity Protection Act (HOEPA), an
Policy Issue amendment to the Truth in Lending Act that set certain restrictions on
“high-cost” loans in order to protect consumers.12 In 1998, as part of an
10
Hearing on “Equity Predators: Stripping, Flipping and Packing Their Way to Profits,”
Special Committee on Aging, U.S. Senate, March 16, 1998. Hearing on “Predatory Mortgage
Lending: The Problem, Impact and Responses,” Committee on Banking, Housing, and Urban
Affairs, U.S. Senate, July 26 and 27, 2001. Hearing on “Predatory Mortgage Lending
Practices: Abusive Uses of Yield Spread Premiums,” Committee on Banking, Housing, and
Urban Affairs, U.S. Senate, January 8, 2002. Hearing on “Protecting Homeowners:
Preventing Abusive Lending While Preserving Access to Credit,” Subcommittees on
Financial Institutions and Consumer Credit and Housing and Community Opportunity,
Committee on Financial Services, House of Representatives, November 5, 2003.
11
A Rural Housing Institute report found that predatory lending did not appear to have
infiltrated rural counties in Iowa as much as urban counties. However, the institute also
noted there have been reports of many cases of predatory lending in rural areas of the
country overall, with comparably severe effects on rural victims. See Rural Voices, Vol. 7,
No. 2, Spring 2002, 4-5.
12
See Pub. L. 103-325 §§ 151-158, 108 Stat. 2190-2198.

Chapter 1
Introduction
overall review of the statutory requirements for mortgage loans, HUD and
the Board released a report recommending that additional actions be taken
to protect consumers from abusive lending practices.13 HUD and the
Department of the Treasury formed a task force in 2000 that produced the
report Curbing Predatory Home Mortgage Lending, which made several
dozen recommendations for addressing predatory lending.14, 15
As discussed in chapters 2 and 3, a variety of federal, state, and local laws

have been used to take civil and criminal enforcement actions against
institutions and individuals accused of abusive lending practices. Various
federal agencies have responsibilities for enforcing laws related to
predatory lending. In addition, some state or local enforcement
authorities—including attorneys general, banking regulators, and district
attorneys—have used state and local laws related to consumer protection
and banking to address predatory lending practices. In addition, many
private attorneys and advocacy groups have pursued private legal actions,
including class actions, on behalf of borrowers who claim to have been
victimized by abusive lending.
Objectives, Scope, and Our objectives were to describe (1) federal laws related to predatory
lending and federal agencies’ efforts to enforce them; (2) the actions taken
Methodology by the states in addressing predatory lending; (3) the secondary market’s
role in facilitating or inhibiting predatory lending; (4) how consumer
education, mortgage counseling, and loan disclosures may deter predatory
lending; and (5) the relationship between predatory lending activities and
elderly consumers. The scope of this work was limited to home mortgage
lending and did not include other forms of consumer loans.
To identify federal laws and enforcement activities related to predatory

lending, we interviewed officials and reviewed documents from HUD, the
13
Board of Governors of the Federal Reserve System and Department of Housing and Urban
Development, Joint Report to the Congress Concerning Reform to the Truth in Lending
Act and the Real Estate Settlement Procedures Act, July 1998.
14
HUD-Treasury Task Force on Predatory Lending, Curbing Predatory Home Mortgage
Lending: A Joint Report, June 2000.
15
During 2003, there were at least two bills introduced in Congress that addressed predatory
or abusive lending practices—the Responsible Lending Act (H.R. 833, Feb. 13, 2003) and the
Predatory Lending Consumer Protection Act of 2003 (S. 1928, Nov. 21, 2003).

Chapter 1
Introduction
Department of Justice (DOJ), the Department of the Treasury, the Federal

Deposit Insurance Corporation (FDIC), FTC, the Board, the National Credit
Union Administration (NCUA), the Office of the Comptroller of the
Currency (OCC), and the Office of Thrift Supervision (OTS). We asked
each agency to provide us with the enforcement actions they have taken
that—in their assessment—were related to predatory home mortgage
lending. We compiled and reviewed data on these enforcement actions and
other steps these agencies have taken to address abusive lending practices.
We also reviewed and analyzed federal laws that have been used to combat
these practices.
To identify actions taken by states and localities, we reviewed and analyzed

a publicly available database maintained by the law firm of Butera &
Andrews that tracks state and municipal antipredatory lending legislation.
We reviewed information related to this database and conducted interviews
with the person who maintains it. In order to identify gaps in the
completeness or accuracy of data, we compared data elements from this
database and from three similar databases maintained by Lotstein
Buckman, the National Conference of State Legislatures, and the Mortgage
Bankers Association of America. We determined that the data were
sufficiently reliable for use in this report. We also interviewed officials
representing a wide range of state and local government agencies, lending
institutions, and advocacy groups in a number of states and municipalities.
In order to illustrate approaches taken in certain states with regard to
predatory lending, we collected and analyzed additional information from
two states, North Carolina and Ohio. We chose these states to illustrate the
differing characteristics of two states’ approaches to addressing predatory
lending—particularly with regard to legislation restricting high-cost loans
and tightening regulation of mortgage lenders and brokers. We also
conducted meetings with the Conference of State Bank Supervisors and the
National Association of Attorneys General that included representatives
from several states. Additionally, we conducted interviews with OCC, OTS,
and NCUA to understand their policies and processes on federal
preemption of state antipredatory lending laws.
To describe the secondary market’s role, we interviewed officials and

reviewed documents from the Bond Market Association, the Securities
Industry Association, Fannie Mae, Freddie Mac, a due diligence contractor,
and two credit rating agencies. We also spoke with officials representing
federal and state agencies, and with representatives of the lending industry
and consumer groups. In addition, we reviewed and analyzed several local
and state laws containing assignee liability provisions.

Chapter 1
Introduction
To describe the role of consumer education, mortgage counseling, and

disclosures in deterring predatory lending, we interviewed officials from
entities that engage in consumer financial education, including several
federal and state agencies, industry trade groups, and local nonprofit
organizations such as the Long Island Housing Partnership, the Greater
Cincinnati Mortgage Counseling Service, and the Foreclosure Prevention
Project of South Brooklyn Legal Services. We also reviewed and analyzed
the materials these entities produce. Additionally, we conducted a
literature review of studies that have evaluated the effectiveness of
consumer education and homeownership counseling.
To describe the impact on older consumers, we conducted a literature

review on predatory lending and the elderly and examined studies on
financial exploitation of the elderly. We also examined certain enforcement
activities and private party lawsuits in which elderly consumers may have
been targeted by abusive lenders. We interviewed federal and state
agencies that have addressed issues of financial abuse of the elderly,
including the Department of Health and Human Services’ Administration
on Aging and the National Institute on Aging, as well as nonprofit groups
that have addressed this issue, including AARP (formerly known as the
American Association of Retired Persons).
In addressing all of the objectives, we met with a wide range of

organizations that represent consumers, among them the National
Community Reinvestment Coalition, the Coalition for Responsible Lending,
the National Consumer Law Center, the Association of Community
Organizations for Reform Now, and AARP. We also met with organizations
representing various aspects of the mortgage lending industry, among them
the American Financial Services Association, the Consumer Mortgage
Coalition, the Coalition for Fair and Affordable Lending, America’s
Community Bankers, the National Association of Mortgage Brokers, the
Mortgage Bankers Association of America, and the National Home Equity
Mortgage Association.
We provided a draft of this report to the Board, DOJ, FDIC, FTC, HUD,
comment. The agencies provided technical comments that have been
incorporated, as appropriate, as well as general comments that are
discussed at the end of chapter 2. The written comments of the Board,
DOJ, HUD, and NCUA are printed in appendixes II through V. We
conducted our work between January 2003 and January 2004 in accordance

Chapter 1
Introduction
with generally accepted government auditing standards in Atlanta, Boston,

New York, San Francisco, and Washington, D.C.

Chapter 2
Federal Agencies Have Taken Steps to

Address Predatory Lending, but Face
Challenges Chapte2
r
While HOEPA is the only federal law specifically designed to combat

predatory mortgage lending, federal agencies, including federal banking
regulators, have used a number of federal consumer protection and
disclosure statutes to take actions against lenders that have allegedly
engaged in abusive or predatory lending.1 These statutes have enabled
agencies to file complaints on behalf of consumers over issues such as
excessive interest rates and fees, deceptive lending practices, and fraud.
FTC, DOJ, HUD, and federal banking regulators have taken steps to
address predatory lending practices through enforcement and civil actions,
guidance, and regulatory changes. In some cases, agencies have
coordinated their efforts through joint enforcement actions and
participation in interagency working groups or task forces. However,
questions of jurisdiction regarding certain nonbank mortgage lenders may
challenge efforts to combat predatory lending. While the Board has
authority to examine many such nonbank mortgage lenders under certain
circumstances, it lacks clear authority to enforce federal consumer
protection laws against them.
Federal Agencies Use a As shown in figure 1, Congress has passed numerous laws that can be used
to protect consumers against abusive lending practices. Federal agencies
Variety of Laws to have applied provisions of these laws to seek redress for consumers who
Address Predatory have been victims of predatory lending. Among the most frequently used
laws are TILA, HOEPA, the Real Estate Settlement Procedures Act
Lending Practices (RESPA), and the FTC Act. 2 Congress has also given certain federal
agencies responsibility for writing regulations that implement these laws.
For example, the Board writes Regulation Z, which implements TILA and
HOEPA, and HUD writes Regulation X, which implements RESPA. Also, in
some cases, DOJ has brought actions under criminal fraud statutes based
on conduct that can constitute predatory lending.
1
HOEPA amended various provisions of the Truth In Lending Act. In the context of this
report, the term “federal banking regulators” refers to the Board, the federal supervisory
agency for state-chartered banks that are members of the Federal Reserve System; OCC,
which supervises national banks and their subsidiaries; FDIC, the federal regulator
responsible for insured state-chartered banks that are not members of the Federal Reserve
System; OTS, the primary federal supervisory agency for federally insured thrifts and their
subsidiaries; and NCUA, which supervises federally insured credit unions.
2
TILA, as amended, is codified at 15 U.S.C. §§ 1601 – 1667f (2000 & Supp 2003). The
pertinent consumer protection provisions of the FTC Act are contained in 15 U.S.C. §§ 41 –
58 (2000). RESPA is codified at 12 U.S.C. §§ 2601 – 2617 (2000 & Supp 2003).

Chapter 2
Challenges
Figure 1: Federal Laws and Statutes Used to Address Lending Practices Generally Considered to be Predatory
Governing federal statute Enforcing federal agencies
Federal
Predatory Title 18 of banking
lending practice a
TILA HOEPA RESPA FTC Act U.S. Code regulators FTC HUD DOJ
Failure to disclose
actual loan costs
Prohibited fees
and payments
Lending without
regard to ability
to repay
Loan flipping
Fraud and deception
Prohibited
prepayment penalties
Prohibited
balloon payments
Source: GAO.
a
HOEPA covers only a limited portion of all subprime loans.
TILA, which became law in 1968, was designed to provide consumers with
accurate information about the cost of credit. Among other things, the act
requires lenders to disclose information about the terms of loans—
including the amount being financed, the total finance charge, and
information on the annual percentage rate—that can help borrowers
understand the overall costs of their loans. TILA also provides borrowers
with the right to cancel certain loans secured by a principal residence
within 3 days of closing or 3 days of the time at which the final disclosure is
made, whichever is later.3
3
See 15 U.S.C. § 1635.

Chapter 2
Challenges
In 1994, Congress enacted the HOEPA amendments to TILA in response to

concerns about predatory lending. HOEPA covers certain types of loans
made to refinance existing mortgages, as well as home equity loans, that
satisfy specific criteria.4 HOEPA covers only a limited portion of all
subprime loans, although there is no comprehensive data on precisely what
that portion is.5 The law is designed to limit predatory practices for these
so-called “high-cost” HOEPA loans in several ways. First, it places
restrictions on loans that exceed certain rate or fee thresholds, which the
Board can adjust within certain limits prescribed in the law. For these
loans, the law restricts prepayment penalties, prohibits balloon payments
for loans with terms of less than 5 years, prohibits negative amortization,
and contains certain other restrictions on loan terms or payments.6
Second, HOEPA prohibits lenders from routinely making loans without
regard to the borrower’s ability to repay. Third, the law requires lenders to
include disclosures in addition to those required by TILA for consumer
credit transactions to help borrowers understand the terms of the high-cost
loan and the implications of failing to make required payments. Each
federal banking regulator is charged with enforcing TILA and HOEPA with
respect to the depository institutions it regulates, and FTC is primarily
responsible for enforcing the statutes for most other financial institutions,
including independent mortgage lenders and nonbank subsidiaries of
holding companies. In enforcing TILA and HOEPA, FTC has required
violators to compensate borrowers for statutory violations. Under certain
4
HOEPA covers closed-end refinancing loans and home equity loans with either (i) an
annual percentage rate that exceeds the rate for Treasury securities with comparable
maturities by more than a specified amount, or (ii) points and fees that exceed the greater of
8 percent of the loan amount or $400, which is adjusted annually for inflation. 15 U.S.C. §
1602(aa)(1), (3); see 12 C.F.R. § 226.32 (2003). HOEPA does not apply to purchase money
mortgages (i.e., loans to purchase or construct a residence), open-end credit (i.e., a line of
credit), and reverse mortgages. See, e.g., 15 U.S.C. § 1639.
5
The Board has cited a study conducted for the American Financial Services Association
that estimated that—using current triggers—HOEPA would have covered nearly 38 percent
of subprime first mortgage loans originated by nine major national lenders from 1995-2000.
See M. Staten and G. Elliehausen, “The Impact of The Federal Reserve Board’s Proposed
Revisions to HOEPA on the Number and Characteristics of HOEPA Loans” (July 24, 2001). In
the past, the Board has also cited estimates from data from OTS that, using the current
triggers, HOEPA would cover roughly 5 percent of all subprime loans, but the Board noted
to us that this estimate may be conservative. See 65 Fed. Reg. at 81441.
6
Negative amortization occurs when loan payment amounts do not cover the interest
accruing on a loan, resulting in an increasing outstanding principal balance over time. See
15 U.S.C. § 1639(f).

Chapter 2
Challenges
circumstances, HOEPA provides for damages in addition to the actual

damages a person sustains as a result of a creditor’s violation of the act.7
RESPA, passed in 1974, seeks to protect consumers from unnecessarily

high charges in the settlement of residential mortgages by requiring lenders
to disclose details of the costs of settling a loan and by prohibiting certain
other costs.8 Among its provisions is a prohibition against kickbacks—
payments made in exchange for referring a settlement service, such as
lender payments to real estate agents for the referral of business. RESPA
also prohibits unearned fees such as adding an additional charge to a third
party fee when no or nominal services are performed. These practices can
unjustly increase the costs of loans and the settlement process. HUD
enforces RESPA, working closely with federal banking regulators and other
federal agencies such as the FTC and the Department of Justice. HUD often
brings joint enforcement actions with these agencies, using RESPA and the
statutes enforced by the other federal agencies. In addition, the banking
regulators may prohibit violations of RESPA in their own regulations.
The FTC Act, enacted in 1914 and amended on numerous occasions,

provides the FTC with the authority to prohibit and take action against
unfair or deceptive acts or practices in or affecting commerce. FTC has
used the act to address predatory lending abuses when borrowers have
been misled or deceived about their loan terms.9
Various criminal fraud statutes prohibit certain types of fraud sometimes

used in abusive lending schemes, including forgery and false statements.
DOJ and HUD have used these statutes to fight fraudulent schemes that
have resulted in borrowers purchasing homes worth substantially less than
their mortgage amounts or borrowers being unfairly stripped of the equity
in their homes. HUD officials have described some of these fraudulent
activities as constituting predatory lending.
7
See Pub. L. No. 103-325 § 153(a), 15 U.S.C. § 1640(a).
8
Among other things, RESPA requires the good faith disclosure of estimated settlement
costs within 3 days after an application for a mortgage loan and, at or before settlement, a
uniform settlement statement (HUD-1) that enumerates the final cost of the loan.
9
Banking regulators are also authorized to enforce standards imposed pursuant to the FTC
Act with respect to unfair or deceptive acts or practices by the institutions they supervise.
See 12 U.S.C. § 57a(f).

Chapter 2
Challenges
The following other federal laws have been used to a lesser extent to
address abusive lending:
• The Fair Housing Act prohibits discrimination based on race, sex, and
other factors in housing-related transactions, and the Equal Credit
Opportunity Act (ECOA) prohibits discrimination against borrowers in
the extension of credit. Federal agencies have used both laws in cases
against lenders that have allegedly targeted certain protected groups
with abusive loans.
• The Home Mortgage Disclosure Act (HMDA) requires lenders to make

publicly available certain data about mortgage loans. Federal agencies
have used the data provided by HMDA to help identify possible
discriminatory lending patterns, including those that involve abusive
lending practices.
• The Community Reinvestment Act (CRA) requires that banking

regulators consider a depository institution’s efforts to meet the credit
needs of its community—including low- and moderate-income
neighborhoods—in examinations and when it applies for permission to
take certain actions such as a merger or acquisition. An institution's fair
lending record is taken into account in assessing CRA performance.
CRA regulations state that abusive lending practices that violate certain
federal laws will adversely affect an institution’s CRA performance.10
• Also, federal banking regulators may rely on their supervisory and

enforcement authorities under the laws they administer, as well as on
the Federal Deposit Insurance Act, to enforce these consumer
protections laws and ensure that an institution’s conduct with respect to
compliance with consumer protection laws does not affect its safety and
soundness or that of an affiliated institution.
• Finally, FTC and the banking regulators can also use the Fair Debt
Collection Practices Act and Fair Credit Reporting Act in enforcement
10
On January 20, 2004, FDIC announced approval of a joint interagency notice of proposed
rulemaking regarding the Community Reinvestment Act. The proposed rule would amend
the act’s regulations to expand and clarify the provision that an institution's Community
Reinvestment Act evaluation is adversely affected when the institution has engaged in
specified discriminatory, illegal, or abusive credit practices in connection with certain loans.
FDIC said that the Board, OCC, and OTS were expected to announce their approval of the
proposed rulemaking shortly.

Chapter 2
Challenges
actions related to predatory lending that involve violations of credit

reporting and loan servicing provisions.
Although a number of federal laws have been used to protect borrowers

from abusive lending or to provide them redress, not all potentially abusive
practices are illegal under federal law. Enforcement officials and consumer
advocates have stated that some lenders make loans that include abusive
features but are designed to remain below the thresholds that would
subject them to the restrictions of HOEPA. For loans not covered under
HOEPA, certain lending practices many consider to be abusive are not,
depending on the circumstances, necessarily a violation of any federal law.
For example, it is not necessarily illegal to charge a borrower interest rates
or fees that exceed what is justified by the actual risk of the mortgage loan.
Nor is it per se illegal under federal law to “steer” a borrower with good
credit who qualifies for a prime loan into a higher cost subprime loan.11
Finally, with the exception of loans covered under HOEPA, there are no
federal statutes that expressly prohibit making a loan that a borrower will
likely be unable to repay.12
11
Even in instances where charging high interest rates or fees or steering borrowers to
subprime loans do not violate federal consumer protection statutes, imposing such rates
and fees on a discriminatory basis against groups protected under the Fair Housing Act and
ECOA could constitute violations of those laws.
12
A pattern of making loans without regard to the ability of borrowers to repay can be
considered a violation of the safety and soundness requirements imposed on federally
insured depository institutions and could also reflect poorly on an institution’s compliance
with the Community Reinvestment Act. See OCC Advisory Letter 2003-2 (Guidance for
National Banks to Guard Against Predatory and Abusive Lending Practices), February 21,
2003. For loans that are covered under HOEPA, making a loan without regard to a
borrower’s ability to repay is not prohibited unless it can be demonstrated that an institution
has engaged in a “pattern or practice” of doing so. OCC in its recent rulemaking prohibited
national banks or their operating subsidiaries from making consumer loans based
predominantly on the foreclosure or liquidation value of a borrower’s collateral. See 69 Fed.
Reg. 1904 (Jan. 13, 2004).

Chapter 2
Challenges
Federal Agencies Have FTC, DOJ, and HUD have taken enforcement actions to address violations
related to abusive lending.13 As of December 2003, FTC reported that the
Taken Some agency had taken 19 actions against mortgage lenders and brokers for
Enforcement Actions, predatory practices. DOJ has addressed predatory lending that is alleged
to be discriminatory by enforcing fair lending laws in a limited number of
but Banking Regulators cases. HUD’s efforts have generally focused on reducing losses to the
Have Focused on Federal Housing Administration (FHA) insurance fund, including
Guidance and implementing a number of initiatives to monitor lenders for violations of
FHA guidelines.14 HUD reported having taken a small number of actions to
Regulatory Changes enforce RESPA and the Fair Housing Act in cases involving predatory
lending.
Federal banking regulators stated that their monitoring and examination

activities have revealed little evidence of predatory lending practices by
federally regulated depository institutions. Accordingly, most banking
regulators reported that they have taken no formal enforcement actions
related to predatory mortgage lending abuses by the institutions they
supervise. Regulators have addressed predatory lending primarily by
issuing guidance to their institutions on guarding against direct or indirect
involvement in predatory lending practices and by making certain changes
to HOEPA and HMDA regulations. In addition, several federal agencies
have coordinated certain efforts to pursue enforcement actions related to
predatory lending and have shared information on their efforts to address
fair lending and predatory lending.
13
Most enforcement actions discussed in this chapter were civil judicial actions brought and
settled by FTC, DOJ, and HUD.
14
HUD’s FHA mortgage insurance program makes loans more readily available for low- and
moderate-income families by providing mortgage insurance to purchase or refinance a
home. Lending institutions such as mortgage companies and banks fund the loans.

Chapter 2
Challenges
FTC Has Played the FTC is responsible for implementing and enforcing certain federal laws
Predominant Federal Role among lending institutions that are not supervised by federal banking
regulators. FTC reported that between 1983 and 2003, it filed 19 complaints
in Enforcement Actions alleging deceptive or other illegal practices by mortgage lenders and
Related to Predatory brokers, 17 of them filed since 1998.15 For a list of these FTC enforcement
Lending actions, see appendix I. As of December 2003, FTC had reached
settlements in all but one of the cases. In most of these settlements,
companies have agreed to provide monetary redress to consumers and to
halt certain practices in the future. In some cases, the settlements also
imposed monetary penalties that the companies have paid to the
government. Among the recent enforcement actions related to predatory
lending that the FTC identified are the following:
• The Associates. In 2002, FTC settled a complaint against Associates

First Capital Corporation and Associates Corporation of North America
(collectively, The Associates), as well as their successor, Citigroup. The
complaint alleged that the lender violated the FTC Act and other laws
by, among other things, deceiving customers into refinancing debts into
home loans with high interest rates and fees and purchasing high-cost
credit insurance. The settlement, along with a related settlement with
private parties, provides for up to $240 million in restitution to
borrowers.16
• First Alliance. In 2002, FTC, along with several states and private
plaintiffs, settled a complaint against First Alliance Mortgage Company
alleging that it violated federal and state laws by misleading consumers
about loan origination and other fees, interest rate increases, and
monthly payment amounts on adjustable rate mortgage loans. The
company agreed to compensate nearly 18,000 borrowers more than $60
15
FTC has also recently addressed abuses in the mortgage loan servicing industry. In
November 2003, it announced settlements with Fairbanks Capital Holding Corp., its wholly
owned subsidiary Fairbanks Capital Corp., and their founder and former CEO (collectively,
Fairbanks) on charges that Fairbanks violated the FTC Act, RESPA, and other laws by
failing to post consumers’ mortgage payments in a timely manner and charging consumers
illegal late fees and other unauthorized fees. The settlement will provide $40 million in
redress to consumers. The case was jointly filed with HUD. United States of America v.
Fairbanks Capital Corp. et al., Civ. Action No. 03-12219-DPW (D. Mass.)(filed 11/12/03).
16
Citigroup, Inc., acquired The Associates in a merger that was completed in November 2000.
The FTC complaint named Citigroup and CitiFinancial Credit Company as successor
defendants.

Chapter 2
Challenges
million in consumer redress and to refrain from making

misrepresentations about future offers of credit.
• Fleet Finance and Home Equity U.S.A. In 1999, Fleet Finance, Inc., and
Home Equity U.S.A., Inc., settled an FTC complaint alleging violations of
the FTC Act, TILA, and related regulations. These violations included
failing to provide required disclosures about home equity loan costs and
terms and failing to alert borrowers to their right to cancel their credit
transactions. To settle, the company agreed to pay up to $1.3 million in
redress and administrative costs and to refrain from violating TILA in
the future.
• Operation Home Inequity. In 1999, FTC conducted “Operation Home

Inequity,” a law enforcement and consumer education campaign that
sought to curb abusive practices in the subprime mortgage lending
market. FTC reached settlements with seven subprime mortgage
lenders that had been accused of violating a number of consumer
protections laws, including the FTC Act, TILA, and HOEPA. Six
companies were required to pay $572,000 in consumer redress, and all
lenders were required to adhere to future lending restrictions. FTC staff
told us that the operation was intended in large part to increase
consumers’ awareness of predatory lending and to provide a deterrent
effect by warning lenders that FTC is able and willing to take action
against them.
FTC staff expressed their belief that the agency’s enforcement actions over
the years have been successful in deterring other lenders from engaging in
abusive practices. However, in a congressional hearing in 2000 FTC had
requested statutory changes that would improve its ability to enforce
HOEPA. For example, FTC recommended that Congress expand HOEPA to
prohibit the financing of lump-sum credit insurance premiums in loans
covered by HOEPA and to give FTC the power to impose civil penalties for
HOEPA violations.17
17
Prepared statement of the Federal Trade Commission before the House Committee on
Banking and Financial Services on “Predatory Lending Practices in the Subprime Industry,”
May 24, 2000. Since then, many mortgage lenders have said they are abandoning lump-sum
credit insurance.

Chapter 2
Challenges
DOJ Has Enforced Fair DOJ’s Housing and Civil Enforcement Section is responsible for enforcing
Lending Laws in Connection certain federal civil rights laws, including the Fair Housing Act and ECOA.
DOJ identified two enforcement actions it has taken related to predatory
with Predatory Lending mortgage lending practices that it alleged were discriminatory. 18
• Delta Funding. In 2000, DOJ, in cooperation with FTC and HUD,

brought charges against Delta Funding Corporation, accusing the
consumer finance company of violations of the Fair Housing Act,
HOEPA, ECOA, RESPA, and related federal regulations. 19 Delta
allegedly approved and funded loans that carried substantially higher
broker fees for African American females than for similarly situated
white males. Delta was also accused of violating certain consumer
protection laws by paying kickbacks and unearned fees to brokers to
induce them to refer loan applicants to Delta and by systematically
making HOEPA loans without regard to borrowers’ ability to repay. The
settlement placed restrictions on the company’s future lending
operations and victims were compensated from previously established
monetary relief funds.20
• Long Beach Mortgage. In 1996 DOJ settled a complaint alleging

violations of the Fair Housing Act and ECOA against Long Beach
Mortgage Company.21 According to the complaint, the company’s loan
officers and brokers charged African American, Hispanic, female, and
18
In addition to these cases, DOJ filed an amicus curiae brief in a private case, Hargraves v.
Capital City Mortgage Corp., Civ. Action No. 98-1021 (JHG/AK) (D DC), in which the
department contended that certain alleged predatory lending practices violated the Fair
Housing Act and ECOA. The case involved a mortgage lender that allegedly engaged in a
pattern or practice of deceiving African American borrowers about the terms of their loans
and other information, such as the total amount due. In addition, DOJ filed a complaint in
United States v. Action Loan, Civ. Action No. 3:00CV-511-H (W.D. KY), which resulted from
enforcement efforts by the FTC and HUD and involved allegations of predatory mortgage
lending.
19
United States v. Delta Funding Corp., Civ. Action No. CV 00 1872 (E.D. N.Y. 2000).
20
Two monetary relief funds totaling over $12 million were set up under a previous
remediation agreement involving Delta and the New York State Banking Department.
21
United States v. Long Beach Mortgage Company, Case No. 96-6159 (1996). Prior to
December 1990, Long Beach Bank was a savings and loan association, chartered by the state
of California. Between December 1990 and October 1994, Long Beach Mortgage Company
operated under the name of Long Beach Bank as a federally chartered thrift institution. In
1999, Washington Mutual, a federally chartered thrift, acquired Long Beach Mortgage
Company and owns it at the holding company level.

Chapter 2
Challenges
older borrowers higher loan rates than it charged other similarly

situated borrowers. The company agreed to set up a $3 million fund to
reimburse 1,200 consumers who had received Long Beach loans.22
Representatives from both FTC and DOJ have stated that their enforcement
actions can be very resource intensive and can involve years of discovery
and litigation. For example, FTC filed a complaint against Capitol City
Mortgage Corporation in 1998 that is still in litigation more than 5 years
later. FTC staff told us that because cases involving predatory lending can
be so resource intensive, the agencies try to focus their limited resources
on the cases that will have the most impact, such as those that may result in
large settlements to consumers or that will have some deterrent value by
gaining national exposure. Similarly, DOJ officials select certain
discrimination cases, including those mentioned above, in part because of
their broad impact.
HUD’s Enforcement HUD’s enforcement and regulatory activity with regard to abusive
Activities Focus on FHA mortgage lending comes primarily through its management of the FHA
single-family mortgage insurance programs, its rule-making and
Loans enforcement authority under RESPA, and its enforcement of the Fair
Housing Act.
Most of HUD’s enforcement activities related to abusive lending have

focused on reducing losses to the FHA insurance fund. Investigators from
HUD’s Office of the Inspector General have worked with investigators from
U.S. Attorneys’ Offices and the FBI in a joint law enforcement effort to
target fraud in the FHA mortgage insurance program, which can result in
defaults and thus in losses to the insurance fund.23 The fraudulent
activities sometimes involve property flipping schemes, which can harm
borrowers by leaving them with mortgage loans that may far exceed the
22
DOJ has also taken enforcement actions to address other practices, such as credit repair
schemes, that do not involve abusive lending but that nonetheless serve to illegally strip
homeowners of their equity.
23
GAO has issued a number of reports on the FHA single-family insurance program, a high-
risk program area. For example, see U.S. General Accounting Office, Major Management
Challenges and Program Risks: Department of Housing and Urban Development,
GAO-03-103 (Washington, D.C.: January 2003).

Chapter 2
Challenges
value of their homes.24 Under certain circumstances, such activity can

involve predatory lending practices. To address these crimes, investigators
have presented evidence of false statements and other criminal fraud and
deception. In addition, representatives from HUD told us that they have
processes in place to ensure that lenders adhere to agency guidelines and
make loans that satisfy FHA requirements. The Office of Lender Activities
and Program Compliance approves, recertifies, and monitors FHA lenders
and works with them to ensure compliance. If necessary, the office refers
violating lenders to HUD’s Mortgagee Review Board, which has the
authority to take administrative actions such as withdrawing approval for a
lender to make FHA-insured loans. HUD officials told us that the board has
taken many administrative actions to address violations that could be
indicative of predatory lending, such as charging excessive and
unallowable fees, inflating appraisals, and falsifying documents showing
income or employment. In an effort to address abusive property flipping
schemes involving homes secured by FHA-insured loans, HUD issued a
final rule in May 2003 that prohibits FHA insurance on properties resold
less than 90 days after their previous sale.
HUD officials say that programs they have in place to improve the
monitoring of FHA lenders also serve to deter predatory lending. For
example, HUD’s Credit Watch Program routinely identifies those lenders
with the highest early default and insurance claim rates and temporarily
suspends the FHA loan origination approval agreements of the riskiest
lenders, helping to ensure that lenders are not making loans that borrowers
cannot repay. Also, the Neighborhood Watch program provides
information to FHA participants about lenders and appraisers whose loans
have high default and FHA insurance claim rates. HUD told us that it has
also taken a series of actions to better ensure the integrity of appraisals
used to finance FHA insured loans. As of December 2003, HUD was in the
final stages of issuing a rule that would hold lenders accountable for
appraisals associated with loans they make.
24
In property flipping schemes, properties are purchased and quickly resold at grossly
inflated values. In some cases the inflated value is established by an interim sale to a “straw
buyer” and then flipped to an unsuspecting purchaser. In other cases, first-time buyers who
have been turned down for home loans because of poor credit or low income are targeted by
flippers who arrange loans well in excess of the real value of the property using fabricated
employment and deposit records. These schemes often involve many players, including
mortgage lenders, mortgage brokers, underwriters, and home-improvement workers.
Almost all flipping schemes involve false appraisals. While HUD categorizes property
flipping as a predatory lending practice, not all federal agencies concur with this
categorization.

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HUD’s Office of RESPA and Interstate Land Sales is responsible for

handling complaints, conducting investigations, and taking enforcement
actions related to RESPA. HUD has taken several enforcement actions
related to RESPA’s prohibition of kickbacks and referral fees, three of
which related directly to abusive mortgage lending, as of December 2003.25
Also, as discussed above, in November 2003 HUD and FTC jointly filed a
case against and reached settlement with a mortgage loan servicing
company charged with violations of the FTC Act, RESPA, and other laws.26
HUD has also recently hired additional staff to enhance its RESPA
enforcement efforts. Finally, in 2002, HUD issued a proposed rule designed
to change the regulatory requirements of RESPA to simplify and potentially
lower the costs of the home mortgage settlement process. According to
HUD, as of December 2003, the final rule had been submitted to the Office
of Management and Budget and was being reviewed.
HUD’s Office of Fair Housing and Equal Opportunity is responsible for

enforcing the Fair Housing Act. HUD identified one action—a letter of
reprimand to a financial institution—related to enforcement of this act in a
case involving predatory lending.
Federal Banking Regulators According to federal banking regulators and state enforcement authorities,
Have Issued Guidance and federally regulated depository institutions—banks, thrifts, and credit
unions—have not typically engaged in predatory lending practices. Federal
Made Regulatory Changes
banking regulators have systems in place to track customer complaints and
reported that they have received few complaints related to predatory
lending by the institutions they supervise. The regulators conduct routine
examinations of these institutions and have the authority, in cases of
suspected predatory lending, to enforce a variety of fair lending and
consumer protection laws. Banking regulators noted that the examination
process, which involves routine on-site reviews of lenders’ activities, serves
as a powerful deterrent to predatory lending by the institutions they
examine.
25
For example, a complaint filed jointly by HUD, FTC, and Illinois authorities against
Mercantile Mortgage Company in 2002 alleged that for almost 3 years, a broker referred
virtually every one of his loan customers to Mercantile in exchange for a fee as high as 10
percent. The other two cases involving RESPA include Delta Funding (2000) and Action
Loan Company (2000).
26
United States of America v. Fairbanks Capital Corp., 03-12219-DPW (D. MA, filed Nov. 12,
2003).

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Officials of OTS, FDIC, the Board, and NCUA said that they had taken no
formal enforcement actions related to predatory mortgage lending against
the institutions they regulate. 27 Officials at OCC said they have taken one
formal enforcement action related to predatory mortgage lending to
address fee packing, equity stripping, and making loans without regard to a
borrower’s ability to pay. In November 2003, the agency announced an
enforcement action against Loan Star Capital Bank seeking to reimburse 30
or more borrowers for more than $100,000 in abusive fees and closing costs
that violated the FTC Act, HOEPA, TILA, and RESPA.28 The bank also was
required to conduct a comprehensive review of its entire mortgage
portfolio and to provide restitution to any additional borrowers who may
have been harmed.
While most federal banking regulators stated that they have taken no
formal enforcement actions, representatives from some said they had
taken informal enforcement actions to address some questionable
practices among their institutions. For example, OTS has examined
institutions that may have charged inappropriate fees or violated HOEPA
and resolved the problems by requiring corrective action as part of the
examination process. In addition, most of the banking regulators have
taken formal enforcement actions, including issuing cease-and-desist
orders, in response to activities that violated fair lending and consumer
protection laws but were not necessarily deemed to constitute “predatory
lending.”
Guidance Federal banking regulators have issued guidance to their institutions about
both predatory lending and subprime lending in general. In February 2003,
OCC issued two advisory letters related to predatory lending to the national
banks and the operating subsidiaries it supervises. One letter provided
specific guidelines for guarding against predatory lending practices during
loan originations, and the other alerted institutions to the risk of indirectly
27
Banking regulators have broad enforcement powers and can take formal actions (cease
and desist orders, civil money penalties, removal orders, and suspension orders, among
others) or informal enforcement actions (such as memoranda of understanding and board
resolutions). Not all informal actions are publicly disclosed.
28
Matter of Clear Lake National Bank, AA-EC03-25 (OCC Nov. 7, 2003). The lender that
made the loans, Clear Lake National Bank of San Antonio, Texas, merged with another bank
in April 2003 to become Lone Star Capital Bank, N.A. OCC brought the action under the
enforcement authority provided by Section 8 of the Federal Deposit Insurance Act, 12 U.S.C.
1818.

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Challenges
engaging in predatory lending through brokered or purchased loans.29 The

advisory letters described loan attributes that are often considered
predatory and established standards for policies and procedures for
monitoring loan transactions to avoid making, brokering, or purchasing
loans with such attributes. For example, the first letter stated that banks
should establish underwriting policies and procedures to determine that
borrowers have the capacity to repay their loans. The advisory letter also
stated OCC’s position that predatory lending will also affect a national
bank’s CRA rating. The advisories have also clarified ways in which
predatory practices can create legal, safety and soundness, and reputation
risks for national banks. For example, they laid out ways in which the
origination or purchase of predatory loans may constitute violations of
TILA, RESPA, HOEPA, the FTC Act, and fair lending laws. In addition, in
January 2004, OCC issued a rule adopting antipredatory lending standards
that expressly prohibit national banks from making loans without regard to
the borrower’s ability to repay and from engaging in unfair and deceptive
practices under the FTC Act.30
In 1999 and 2001, the Board, FDIC, OCC, and OTS issued joint guidance to
their institutions on subprime lending in general.31 The guidance
highlighted the additional risks inherent in subprime lending and noted that
institutions engaging in such lending need to be aware of the potential for
predatory practices and be particularly careful to avoid violating fair
lending and consumer protection laws and regulations. The NCUA issued
similar guidance to insured credit unions in 1999.32 Federal banking
29
OCC Advisory Letter 2003-2 (Guidance for National Banks to Guard Against Predatory and
Abusive Lending Practices), February 21, 2003; and OCC Advisory Letter 2003-3 (Avoiding
Predatory and Abusive Lending Practices in Brokered and Purchased Loans), February 21,
2003.
30
69 Fed. Reg. 1904 (Jan. 13, 2004).
31
The Board, FDIC, OCC and OTS, Interagency Guidance on Subprime Lending, March 1,
1999; and Expanded Guidance for Subprime Lending Programs, January 31, 2001. The 2001
guidance applies to institutions with subprime lending programs with an aggregate credit
exposure greater than or equal to 25 percent of Tier 1 capital.
32
NCUA Letter to Credit Unions No. 99-CU-05, Risk Based Lending, June 1999.

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Challenges
regulators have also previously issued guidance about abusive lending

practices, unfair or deceptive acts or practices, and other issues related to
predatory lending.33
Regulatory Changes The Board is responsible for issuing regulations that implement HOEPA
and HMDA, two laws that play a role in addressing predatory lending. In
December 2001, in response to concerns that HOEPA may not be
adequately protecting consumers from abusive lending practices, the
Board amended Regulation Z, which implements HOEPA, to
• lower the interest rate “trigger” that determines whether loans are
covered under HOEPA in order to bring more loans under the protection
of the law,34
• require that fees paid for credit insurance and similar debt protection
products be included when determining whether loans are subject to
HOEPA,
• prohibit creditors that make HOEPA loans from refinancing the loan
within one year of origination with another HOEPA loan, unless the
refinancing is in the borrower’s interest, and
• clarify the prohibition against engaging in a “pattern or practice” of

lending without regard to borrowers’ ability to repay.35
In February 2002, the Board also made changes to Regulation C, which

implements HMDA. The changes, which went into effect in January 2004,
require lenders to provide additional data that may facilitate analyses of
lending patterns that may be predatory. For example
33
See OCC Advisory Letter 2000-7 (abusive lending practices); OCC Advisory Letter 2000-10,
OCC Advisory Letter 2000-11, OTS Chief Executive Officers Letter 131, OTS Chief Executive
Officers Letter 132, and NCUA Letter 01-FCU-03 (title loans and payday lending); OCC
Bulletin 2001-47 (third-party relationships); and OCC Advisory Letter 2002-3 and FDIC
Financial Institution Letter 57-2002 (unfair or deceptive acts or practices).
34
The Board adjusted the annual percentage rate (APR) trigger from 10 to 8 percentage
points above the rate for Treasury securities with comparable maturities. The change
applies only to first lien mortgages; the subordinate lien mortgage APR trigger remained at
10 percent.
35
66 Fed. Reg. 65604 (Dec. 20, 2001).

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Challenges
• if the costs to the borrower of financing a loan exceed a certain

threshold determined by the Board, the lender must report the cost of
the loan;36
• if an application or loan involves a manufactured home, the lender is

required to identify that fact, in part to help identify predatory practices
involving these types of homes; and
• if a loan is subject to HOEPA, the lender is required to identify that fact

in order to give policymakers more specific information about the
number and characteristics of HOEPA loans.37
Because HOEPA expressly grants the Board broad authority to issue rules
to regulate unfair or deceptive acts and practices, some consumer
advocacy organizations have argued that the Board should use its authority
to do more to curb predatory lending.38 For example, some consumer
groups have called on the Board to use its rule-making authority to prohibit
the financing of single-premium credit insurance—a product that is
believed by many to be inherently predatory.39 Under the McCarran
Ferguson Act,40 unless a federal statute is specifically related to the
business of insurance, the federal law may not be construed to invalidate,
impair, or supercede any state law enacted to regulate the business of
insurance. Board officials say it is not clear the extent to which rules
issued by the Board under HOEPA seeking to regulate the sale of single-
premium credit insurance would be consistent with that standard. The
Board has previously recommended that it would be more appropriate for
Congress to address this issue through changes in law. Some consumer
groups also have argued that the Board should increase the loan data
reporting requirements of HMDA to help detect abusive lending. The
36
More specifically, lenders are required to report the difference or spread between a loan’s
annual percentage rate (a value reflecting both the interest rate and certain fees associated
with a loan) and the yield on a Treasury security of comparable maturity, for loans where
this spread exceeds certain thresholds set by the Board. See, generally, 67 Fed. Reg. 7222
(Feb. 15, 2002) and 67 Fed. Reg. 43218 (June 27, 2002).
37
Id.
38
See 15 U.S.C. § 1639(l)(2).
39
In its 2001 amendments to the HOEPA rules, the Board added single-premium credit
insurance to HOEPA’s fee trigger.
40
See 15 U.S.C. § 1012.

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Challenges
Board has added certain loan pricing and other items to the HMDA
reporting requirements, effective in January 2004, but did not add other
data reporting requirements, such as the credit score of the applicant.
Board officials said this is based on the belief that the need for additional
loan data to ensure fair lending must be weighed against the costs and
burdens to the lender of gathering and reporting the additional information.
Agencies Have Coordinated Federal agencies have worked together to investigate and pursue some
on Enforcement Actions cases involving predatory lending. For example, FTC, DOJ, and HUD
coordinated to take enforcement action against Delta Funding
and Participated in
Corporation, with each agency investigating and bringing actions for
Interagency Groups violations of the laws under its jurisdiction. DOJ conducted its
enforcement action against Long Beach Mortgage Company in
coordination with OTS, which investigated the initial complaint in 1993
when the company was a thrift. Federal agencies have also coordinated
with state authorities and private entities in enforcement actions. For
example, in 2002, FTC joined six states, AARP, and private attorneys to
settle a complaint against First Alliance Mortgage Company alleging that
the company used deception and manipulation in its lending practices.
Federal regulators have also coordinated their efforts to address fair

lending and predatory lending through working groups. For example
• In the fall of 1999 the Interagency Fair Lending Task Force, which
coordinates federal efforts to address discriminatory lending,
established a working group to examine the laws related to predatory
lending and determine how enforcement and consumer education could
be strengthened.41 Because of differing views on how to define and
combat predatory lending, the group was unable to agree on a federal
interagency policy statement related to predatory lending in 2001. The
Task Force then continued its efforts related to consumer education and
published a brochure in 2003 to educate consumers about predatory
lending practices.
• The five banking regulators have conducted additional coordination

activities through the Federal Financial Institutions Examination
41
The agencies that participated in the working group were OCC, OTS, FDIC, the Board,
NCUA, DOJ, FTC, HUD, the Federal Housing Finance Board, and the Office of Federal
Housing Enterprise Oversight.

Chapter 2
Challenges
Council’s Task Force on Consumer Compliance.42 The task force

coordinates policies and procedures for ensuring compliance with fair
lending laws and the Community Reinvestment Act, both of which have
been identified as tools that can be used to address predatory lending.
The council publishes a document that responds to frequently asked
questions about community reinvestment, including how examiners
should consider illegal credit practices, which may be abusive, in
determining an institution’s Community Reinvestment Act rating.
• In 2000, HUD and the Department of the Treasury created the National
Task Force on Predatory Lending, which convened forums around the
country to examine the issue and released a report later in the year.43
The report made specific recommendations to Congress, federal
agencies, and other stakeholders that were aimed at (1) improving
consumer literacy and disclosure, (2) reducing harmful sales practices,
(3) reducing abusive or deceptive loan terms and conditions, and
(4) changing structural aspects of the lending market.
Some of the recommendations made in the HUD-Treasury task force report

have been implemented. For example, as recommended in the report, the
Board has adopted changes to HOEPA regulations that have increased the
number of loans covered and added additional restrictions. In addition, as
the report recommended, FTC and some states have devoted more
resources in the past few years to actively pursuing high-profile
enforcement cases. As discussed in chapter 5, federal and state agencies
have also worked to improve one of the areas highlighted in the report:
public awareness about predatory lending issues. Other recommendations
made in the report have not been implemented, however. For example,
Congress has not enacted legislation to expand penalties for violations of
TILA, HOEPA, and RESPA or to increase the damages available to
borrowers harmed by such violations. HUD and the Department of the
Treasury told us that they have not formally tracked the status of the
recommendations made in the report, although HUD officials said they are
42
The Federal Financial Institutions Examination Council is a formal interagency body
composed of representatives of each of the five federal banking regulators. The council was
established in 1979 and is empowered to (1) prescribe uniform principles, standards, and
report forms for the federal examination of financial institutions and (2) make
recommendations to promote uniformity in the supervision of financial institutions.
43
U.S. Department of the Treasury and U.S. Department of Housing and Urban Development,
Curbing Predatory Home Mortgage Lending: A Joint Report, June 2000.

Chapter 2
Challenges
informally monitoring the recommendations in the report that relate to

their agency. Officials at both agencies also noted that the report and its
recommendations were the product of a previous administration and may
or may not reflect the views of the current administration.
In addition to participating in interagency groups, agencies share

information related to fair lending violations under statutory requirements
and formal agreements. For example, since 1992 HUD and the banking
regulators have had a memorandum of understanding stating that HUD will
refer allegations of fair lending violations to banking regulators and a 1994
executive order requires that executive branch agencies notify HUD of
complaints and violations of the Fair Housing Act. In addition, whenever
the banking regulatory agencies or HUD have reason to believe that an
institution has engaged in a “pattern or practice” of illegal discrimination,
they are required to refer these cases to DOJ for possible civil action.
Jurisdictional Issues Jurisdictional issues related to the regulation of certain nonbank mortgage
lenders may challenge efforts to combat predatory lending. Many federally
Related to Nonbank and state-chartered banks and thrifts, as well as their subsidiaries, are part
Subsidiaries Challenge of larger financial holding companies or bank holding companies.44 These
holding companies may also include nonbank financial companies, such as
Efforts to Combat finance and mortgage companies, that are subsidiaries of the holding
Predatory Lending companies themselves. These holding company subsidiaries are frequently
referred to as affiliates of the banks and thrifts because of their common
ownership by the holding company. As shown in figure 2, the federal
regulators of federally and state-chartered banks and thrifts also regulate
the subsidiaries of those institutions. For example, as the primary
regulator for national banks, OCC also examines operating subsidiaries of
those banks. On the other hand, federal regulators generally do not
perform routine examinations of independent mortgage lenders and
affiliated nonbank subsidiaries of financial and bank holding companies
engaged in mortgage lending.
44
A subsidiary of a bank, thrift, or credit union is controlled through partial or complete
ownership by the institution. Federal laws and regulations set more specific requirements
that dictate whether an institution is a subsidiary. For the purposes of this report, the term
holding company refers to both (traditional) bank holding companies and bank holding
companies that qualify as financial holding companies as defined by the Board.

Chapter 2
Challenges
Figure 2: Structure and Federal Oversight of Mortgage Lenders
Holding company
(the Board)
Financial institutions and

their subsidiaries within
a holding company
A bank holding company or financial

State Insured
holding company can include National bank
State
nonmember savings and loan
Nonbank
national and state banks and thrifts, member bank subsidiary
(OCC) bank association
and their subsidiaries, all of which (the Board) (FTC)a
(FDIC) (OTS)
can engage in mortgage lending. In
addition, such a holding company
can have nonbank subsidiaries that
engage in mortgage lending or other Bank subsidiary Bank subsidiary Bank subsidiary Thrift subsidiary
financial activities. (OCC) (the Board) (FDIC) (OTS)
Independent mortgage lenders Insured depository

Independent institutions and their subsidiaries
Many mortgage lenders are not mortgage lender
insured depository institutions, their (FTC)a National and state banks and thrifts, and their subsidiaries, that are not part of
subsidiaries, or the subsidiaries of holding companies can engage in mortgage lending and would be subject to
bank or financial holding companies. oversight by their primary federal banking regulator.
Source: GAO.
Note: The primary federal agency for enforcement of the various federal laws used to combat abusive
or predatory lending activities is shown in parentheses.
a
FTC is responsible for enforcing federal laws for lenders that are not depository institutions but it is not
a supervisory agency and does not conduct routine examinations.
Some disagreement exists between states and some federal banking

regulators over states’ authority to regulate and supervise the operating
subsidiaries of federally chartered depository institutions. For example,
OCC issued an advisory letter in 2002 noting that federal law provides the
agency with exclusive authority to supervise and examine operating
subsidiaries of national banks and that the states have no authority to
regulate or supervise these subsidiaries.45 Some representatives of state
banking regulators expressed concerns to us about this because of the
subsidiaries’ potential involvement in predatory lending practices. OCC
45
OCC Advisory Letter 2002-9 (Questions Concerning Applicability and Enforcement of State
Laws: Contacts From State Officials, November 25, 2002.); see also 69 Fed. Reg. 1904
(Jan. 13, 2004).

Chapter 2
Challenges
has stated that the subsidiaries of the institutions it regulates do not play a
large role in subprime lending and that little evidence exists to show that
these subsidiaries are involved in predatory lending. But some state
enforcement authorities and consumer advocates argue otherwise, citing
some allegations of abuses at national bank subsidiaries. However, several
state attorneys general have written that predatory lending abuses are
“largely confined” to the subprime lending market and to non-depository
institutions, not banks or direct bank subsidiaries.46 OCC officials stated
that the agency has strong monitoring and enforcement systems in place
and can and will respond vigorously to any abuses among institutions it
supervises.47 For example, OCC officials pointed to an enforcement action
taken in November 2003 that required restitution of more than $100,000 to
be paid to 30 or more borrowers for fees and interest charged in a series of
abusive loans involving small “tax-lien loans.”
A second issue relates to the monitoring and supervision of certain

nonbank subsidiaries of holding companies. As noted previously, many
federally and state-chartered banks and thrifts, as well as their subsidiaries,
are part of larger financial or bank holding companies.48 These holding
companies may also include nonbank subsidiaries, such as finance and
mortgage companies, that are affiliates but not subsidiaries of the federally
regulated bank or thrift. Although these affiliates engage in financial
activities that may be subject to federal consumer protection and fair
lending laws, unlike depository institutions they are not subject to routine
supervisory examinations for compliance with those laws. While the Board
has jurisdiction over these entities for purposes of the Bank Holding
Company Act, it lacks authority to ensure and enforce their compliance
46
See Brief of Amicus Curiae State Attorneys General, National Home Equity Mortgage
Ass’n v. OTS, Civil Action No. 02-2506 (GK) (D D.C.) (March 21, 2003) at 10-11.
47
Another jurisdictional issue is uncertainty as to whether the FTC shares jurisdiction with
federal banking regulators over bank subsidiaries that are not themselves banks (operating
subsidiaries). While OCC maintains it has exclusive regulatory jurisdiction over the
operating subsidiaries of national banks, FTC argues that a provision of the Gramm-Leach-
Bliley Act provides for the two agencies to share jurisdiction. See Pub. L. No. 106-102 §
133(a). A federal district court has upheld FTC’s interpretation. (See Minnesota v. Fleet
Mortg. Corp., 181 F. Supp. 2d 995 (D MN 2001)). We are not aware of any instance in which
this matter has interfered with an FTC enforcement action.
48
In addition to financial and bank holding companies, there are thrift holding companies,
which can include thrifts and other financial institutions. Each thrift holding company is
regulated and subject to examination by OTS. See 12 USC §1467a (b)(4).

Chapter 2
Challenges
with federal consumer protection and fair lending laws in the same way
that the federal regulators monitor their depository institutions.
One reason for the concern about these entities is that nonbank
subsidiaries of holding companies conduct a significant amount of
subprime mortgage lending. Of the total subprime loan originations made
by the top 25 subprime lenders in the first 6 months of 2003, 24 percent
were originated by nonbank subsidiaries of holding companies. In
addition, of the 178 lenders on HUD’s 2001 subprime lender list, 20 percent
were nonbank subsidiaries of holding companies. These types of
subsidiaries have also been targets of some of the most notable federal and
state enforcement actions involving abusive lending. For example, The
Associates and Fleet Finance, which were both nonbank subsidiaries of
bank holding companies, were defendants in two of the three largest cases
involving subprime lending that FTC has brought.49
The Associates case illustrates an important aspect of the current federal

regulatory oversight structure pertinent to predatory lending. The Board
has authority under the Bank Holding Company Act to condition its
approval of holding company acquisitions. The Board used this authority
in connection with Citigroup’s acquisition of European American Bank
because of concerns about the subprime lending activities of The
Associates, which Citigroup had acquired and merged into its CitiFinancial
subsidiary. As a condition of approving the acquisition of European
American Bank, the Board directed that an examination of certain
subprime lending subsidiaries of Citigroup be carried out to determine
whether Citigroup was effectively implementing policies and procedures
designed to ensure compliance with fair lending laws and prevent abusive
lending practices. However, the Board does not have clear authority to
conduct the same type of monitoring outside of the Bank Holding Company
Act approval process. Although the Board has the authority to monitor and
49
Citigroup acquired The Associates in November 2000 and merged The Associates’
consumer finance operations into its subsidiary, CitiFinancial Credit Company, a nonbank
subsidiary of the holding company. In 1999, Fleet Finance, Inc., and its successor company,
Home Equity U.S.A., Inc., agreed to pay $1.3 million to settle an FTC complaint alleging
deceptive disclosures and TILA violations in conjunction with Fleet Finance, Inc., loans. At
the time of the settlement, Fleet Finance had become Home Equity U.S.A., Inc. Both Fleet
Finance, Inc., and Home Equity U.S.A., Inc., were nonbank subsidiaries of bank holding
companies. At the time of the settlement, the bank holding company was Fleet Financial
Group, Inc., which has been renamed FleetBoston Financial Corporation. Home Equity
U.S.A., Inc., continues to operate as a nonbank subsidiary of FleetBoston Financial
Corporation, a bank holding company.

Chapter 2
Challenges
perform routine inspections or examinations of a bank holding company,

this authority apparently does not extend to routine examinations of
nonbank subsidiaries of bank holding companies with regard to
compliance with consumer protection laws. The Bank Holding Company
Act, as amended by the Gramm-Leach-Bliley Act, authorizes the Board to
examine a nonbank subsidiary for specific purposes, including “to monitor
compliance with the provisions of (the Bank Holding Company Act) or any
other Federal law that the Board has specific jurisdiction to enforce against
such company or subsidiary.” Federal consumer protection laws do not
give the Board specific enforcement jurisdiction over nonbank
subsidiaries.
For this reason, FTC is the primary federal agency monitoring nonbank
subsidiaries’ compliance with consumer protection laws. FTC is the
primary federal enforcer of consumer protection laws for these nonbank
subsidiaries, but it is a law enforcement rather than supervisory agency.
Thus, FTC’s mission and resource allocations are focused on conducting
investigations in response to consumer complaints and other information
rather than on routine monitoring and examination responsibilities.
Moreover, as discussed elsewhere in this report, states vary widely in the
extent to which they regulate practices that can constitute predatory
lending.
The HUD-Treasury report on predatory lending argued that the Board

should take more responsibility for monitoring nonbank subsidiaries of
bank holding companies, in part to ensure that consumer protection laws
are adequately enforced for these institutions. Similarly, in 1999, GAO
recommended that the Board monitor the lending activities of nonbank
mortgage lending subsidiaries of bank holding companies and consider
examining these entities if patterns in lending performance, growth, or
operating relationships with other holding company entities indicated the
need to do so.50 In its written response to GAO’s recommendation, the
Board said that while it has the general legal authority to examine these
entities, it has neither the clear enforcement jurisdiction nor the legal
responsibility for engaging in such activities, as Congress has directly
charged FTC with primary responsibility over enforcement with regard to
these entities.
50
See U.S. General Accounting Office, Large Bank Mergers: Fair Lending Review Could be
Enhanced With Better Coordination, GAO/GGD-00-16 (Washington, D.C.: Nov. 3, 1999), 20
and 47.

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Among federal agencies, the Board is uniquely situated to monitor the

activities of the nonbank mortgage lending subsidiaries of financial and
bank holding companies by virtue of its role as the regulator of holding
companies and its corresponding access to data (such as internal operating
procedures, loan level data, and current involvement in subprime lending)
that are not readily available to the public. In addition, the Board has
extensive experience monitoring and analyzing HMDA data. The recent
changes in HMDA reporting requirements will increase the Board’s ability
to effectively monitor nonbank mortgage lending subsidiaries of holding
companies for lending abuses.
In contrast to the specific limits on the Board’s examination authority, its

authority to enforce the federal consumer protection laws against nonbank
subsidiaries is somewhat less clear. The laws themselves specify the
institutions subject to enforcement by the Board, but those institutions
generally do not include nonbank subsidiaries. The Board has concluded
that it must defer enforcement action at least where, as here, a statute
specifically prescribes its enforcement jurisdiction to cover only certain
entities and specifically grants enforcement authority for other entities to
another agency.
Conclusions Under a number of laws, federal agencies have taken action to protect
consumers from abusive lending practices. While FTC has taken a number
of significant enforcement actions to battle abuses in the industry, its
resources are finite and, as a law enforcement agency, it does not routinely
monitor or examine lenders, including the mortgage lending subsidiaries of
financial and bank holding companies.
Congress provided banking regulators with the authority to ensure

compliance with consumer protection laws by the institutions they
regulate, in part because it recognized the efficiencies of having banking
regulators monitor for compliance with these laws while examining their
institutions for safety and soundness. The Board is in a position to help
ensure compliance with federal consumer protection laws by certain
subsidiaries of financial and bank holding companies if it were clearly
authorized to do so. While concerns about predatory lending extend well
beyond the activities of the nonbank subsidiaries of holding companies,
these entities represent a significant portion of the subprime mortgage
market. Monitoring the mortgage lending activities of the nonbank
subsidiaries would help the Board determine when it would be beneficial to
conduct examinations of specific nonbank subsidiaries. The Board could

Chapter 2
Challenges
then refer its findings to DOJ, HUD, or FTC or take its own enforcement
action if a problem exists. Granting the Board concurrent enforcement
authority—with the FTC—for these nonbank subsidiaries of holding
companies would not diminish FTC’s authority under federal laws used to
combat predatory lending.
The significant amount of subprime lending among holding company

subsidiaries, combined with recent large settlements in cases involving
allegations against such subsidiaries, suggests a need for additional
scrutiny and monitoring of these entities. The Board is in an optimal
position to play a larger role in such monitoring but does not have clear
legal authority and responsibility to do so for these entities with regard to
monitoring compliance of consumer protection laws.
Matters for To enable greater oversight of and potentially deter predatory lending from
occurring at certain nonbank lenders, Congress should consider making
Congressional appropriate statutory changes to grant the Board of Governors of the
Consideration Federal Reserve System the authority to routinely monitor and, as
necessary, examine the nonbank mortgage lending subsidiaries of financial
and bank holding companies for compliance with federal consumer
protection laws applicable to predatory lending practices. Also, Congress
should consider giving the Board specific authority to initiate enforcement
actions under those laws against these nonbank mortgage lending
subsidiaries.
Agency Comments and GAO provided a draft of this report to the Board, DOJ, FDIC, FTC, HUD,
Our Evaluation comment. The agencies provided technical comments that have been
incorporated, as appropriate. In addition, the Board, DOJ, FDIC, FTC,
HUD, and NCUA provided general comments, which are discussed below.
The written comments of the Board, DOJ, HUD, and NCUA are printed in
appendixes II through V.
The Board commented that, while the existing structure has not been a
barrier to Federal Reserve oversight, the approach recommended in our
Matter for Congressional Consideration would likely be beneficial by
catching some abusive practices that might not be caught otherwise. The
Board also noted that the approach would pose tradeoffs, such as different
supervisory schemes being applied to nonbank mortgage lenders based on

Chapter 2
Challenges
whether or not they are part of a holding company. Because nonbank

mortgage lenders that are part of a financial or bank holding company are
already subject to being examined by the Board in some circumstances,
they are already subject to a different supervisory scheme than other such
lenders. For example, in its comments the Board noted that it may on
occasion direct an examination of a nonbank lending subsidiary of a
holding company when necessary in the context of applications that raise
serious fair lending or compliance issues. Accordingly, we do not believe
that clarifying jurisdiction as contemplated in the Matter would result in a
significant departure from the current supervisory scheme for nonbank
mortgage lenders. The Board also noted that that there could be some
additional cost to the nonbank mortgage lending subsidiaries of financial or
bank holding companies, as well as to the Board, if the Board were to
exercise additional authority. We agree and believe that Congress should
consider both the potential costs as well as the benefits of clarifying the
Board’s authorities.
The FTC expressed concern that our report could give the impression that
we are suggesting that Congress consider giving the Board sole
jurisdiction—rather than concurrent jurisdiction with FTC—over nonbank
subsidiaries of holding companies. Our report did not intend to suggest
that the Congress make any change that would necessarily affect FTC’s
existing authority for these entities and we modified our report to clarify
this point. To illustrate the difference in regulatory and enforcement
approaches, our draft report contrasted the Board’s routine examination
authority with the FTC’s role as a law enforcement agency. In its
comments, FTC noted that it uses a number of tools to monitor nonbank
mortgage lenders, of which consumer complaints is only one. The agency
also commented that a key difference between the FTC and the Board is
that the Board has access to routine information to aid in its oversight as
part of the supervisory process. Our report did not intend to suggest that
the FTC’s actions are based solely on consumer complaints, and we revised
the report to avoid this impression.
DOJ commented that the report will be helpful in assessing the

department’s role in the federal government’s efforts to develop strategies
to combat predatory lending. DOJ disagreed with our inclusion in the
report of “property or loan flips,” which it characterized as a traditional
fraud scheme rather than an example of predatory lending. As our report
states, there is no precise definition of predatory lending. We included a
discussion of efforts to combat “property flipping” because HUD officials
told us that these schemes sometimes involve predatory practices that can

Chapter 2
Challenges
harm borrowers. As we note in the report, while HUD categorizes property

flipping as a predatory lending practice, not all federal agencies concur
with this categorization. Distinct from property flipping is “loan flipping”—
the rapid and repeated refinancing of a loan without benefit to the
borrower. This practice is widely noted in literature and by federal, state,
industry, and nonprofit officials as constituting predatory lending.
FDIC noted that our Matter for Congressional Consideration focuses on

nonbank subsidiaries of financial and bank holding companies even though
these entities comprise, according to HUD, only about 20 percent of all
subprime lenders. We acknowledge that our Matter does not address all
subprime lenders or institutions that may be engaging in predatory lending,
but believe it represents a step in addressing predatory lending among a
significant category of mortgage lenders. NCUA said that the report
provides a useful discussion of the issues and that the agency concurs with
our Matter for Congressional Consideration. HUD, in its comment letter,
described a variety of actions it has taken that it characterized as
combating predatory lending, particularly with regard to FHA-insured
loans.

Chapter 3
States Have Enacted and Enforced Laws to

Address Predatory Lending, but Some Laws
Have Been Preempted Chapte3
r
In part because of concerns about the growth of predatory lending and the
limitations of existing state and federal laws, 25 states, the District of
Columbia, and 11 localities had passed their own laws addressing
predatory lending practices as of January 9, 2004.1 Most of the state laws
restrict the terms or provisions of certain high-cost loans, while others
apply to a broader range of loans. In addition, some states have taken
measures to strengthen the regulation and licensing of mortgage lenders
and brokers, and some have used existing state consumer protection and
banking laws to take enforcement actions related to abusive lending.
However, regulators of federally chartered financial institutions have
issued opinions stating that federal laws may preempt some state predatory
lending laws and that nationally chartered lending institutions should have
to comply only with a single uniform set of national standards. Many state
officials and consumer advocates have opposed federal preemption of state
predatory lending laws on the grounds that it interferes with the states’
ability to protect consumers.
States and Localities Since 1999, many states and localities have passed laws designed to
address abusive mortgage lending by restricting the terms or provisions of
Have Addressed certain loans. In addition, states have increased the registration or
Predatory Lending licensing requirements of mortgage brokers and mortgage lenders and have
undertaken enforcement activities under existing consumer protection
through Legislation, laws and regulations to combat abusive lending.
Regulation, and
Enforcement Actions
1
Except where citations to provisions of state laws are provided, all information relating to
state and local laws and their provisions is from a database maintained by Butera &
Andrews, a Washington, D.C., law firm that tracks predatory lending legislation. These laws
include only state and local laws that place actual restrictions on lending and do not include,
for example, local ordinances that consist solely of a resolution that condemned predatory
lending. As noted in chapter 1, we took measures to verify the reliability of these data.

Chapter 3
Have Been Preempted
A Growing Number of According to the database of state laws, as of January 9, 2004, 25 states and
States and Localities Have the District of Columbia had passed laws that were specifically designed to
address abusive lending practices.2 (See fig. 3.) These laws were motivated,
Passed Laws to Address at least in part, by growing evidence of abusive lending and by concerns
Abusive Lending that existing laws were not sufficient to protect consumers against abusive
lending practices.
Figure 3: States and Localities That Have Enacted Predatory Lending Laws
Localities: Localities: Localities:

Chicago Cleveland New York
Washington Cook Dayton
County Toledo Maine
Minnesota New Hampshire
Cleveland
Montana North Dakota Vermont
Heights
Oregon
Wisconsin
Idaho South Dakota N.Y. Rhode
Mich. Island
Wyoming Conn.
Iowa Pa.
Nebraska N.J.
Nevada Ohio
Illinois Indiana W. Delaware
Utah Colorado Md.
Va. Va.
Calif. Kansas Missouri Kentucky
N.C. D.C.
Tennessee
New Okla. Ark. S.C.
Arizona
Mexico
Missis-Alabama Ga.
sippi Localities:
Localities:
Oakland Atlanta
Texas Louisiana
Los Angeles Dekalb County
Fla.
States and localities that have enacted predatory lending laws
Source: Butera & Andrews.
2
North Carolina enacted the first state law (N.C. Gen. Stat. 24-1-.1E[1999]) in 1999; it took
effect on July 1, 2000. Nearly all the other state laws were enacted between 2001 and 2003.

Chapter 3
Have Been Preempted
Based on our review of the database of state laws, the predatory lending
statutes in 20 of the 25 states regulate and restrict the terms and
characteristics of certain kinds of “high-cost” or “covered” mortgage loans
that exceed certain interest rate or fee triggers.3 Some state laws, such as
those in Florida, Ohio, and Pennsylvania, use triggers that are identical to
those in the federal HOEPA statute but add provisions or requirements,
such as restrictions on refinancing a loan under certain conditions.4 Other
state laws, such as those of Georgia, New Jersey and North Carolina, use
triggers that are lower than those in HOEPA and therefore cover more
loans than the federal legislation.5 Some states design their triggers to vary
depending on the amount of the loan. For example, in New Mexico and
North Carolina, covered loans greater than $20,000 are considered high
cost if the points and fees on the loan exceed 5 percent of the total loan
amount (North Carolina) or equal or exceed it (New Mexico). In these
states, loans for less than $20,000 are considered high cost if the points and
fees exceed either 8 percent of the total or $1,000.6 In the remaining 5
states, the predatory lending laws apply to most mortgage loans; there is no
designation of loans as high cost. For example, West Virginia’s law in effect
generally prohibits lenders from charging prepayment penalties on any
loans and restricts points and fees to either 5 or 6 percent, depending on
whether the loan includes a yield spread premium.7 Michigan’s law
prohibits the financing of single-premium credit insurance into loans.8
According to the database, common provisions in state laws are designed

to address the following:
• Lending without regard to the ability to repay. Restrictions on the

making of loans without regard to the borrower’s ability to repay the
loan, sometimes referred to as asset-based lending.
3
Massachusetts has imposed similar restrictions on high-cost loans, but it was done through
regulatory changes rather than legislation.
4
See, e.g., Fla. Stat. Ann. §§ 494.0079, 494.00791 (2003); Ohio Rev. Code Ann. §§ 1394; Ohio
Rev. Code Ann. § 1349.25 (2003); 63 PA Stat. § 456.503 (2003).
5
See GA Code Ann. § 7-6A-2(2003); N.J. Stat. Ann. § 46:10B-24 (West 2003); N.C. Gen. Stat. §
24-1.1E (2003).
6
N.C. Gen. Stat. § 24-1-1E; N.M. Stat. Ann § 58-21A-3 (2003).
7
W. VA. Code §§ 46A-3-110, 31-17-8 (2003).
8
See Mich. Comp. Laws § 445.1634 (2003).

Chapter 3
Have Been Preempted
• Prepayment penalties. Limitations on the amount of a prepayment

penalty, terms under which a penalty can be assessed, or both.
• Balloon payments. Prohibitions on loans with balloon payments or

restrictions on their timing.
• Negative amortization. Prohibitions on loans where regularly

scheduled payments do not cover the interest due.
• Loan flipping. Restrictions or prohibitions on the repeated refinancing

of certain loans within a short period of time if the refinancing will not
benefit the borrower.
• Credit counseling. Requirements that borrowers either receive or are

notified of the availability of loan counseling.
• Arbitration clauses. Restrictions on mandatory arbitration clauses,

which limit a borrower’s right to seek redress in court. Some laws
prohibit mandatory arbitration clauses altogether, while others require
compliance with certain standards, such as those set by a nationally
recognized arbitration organization.
• Assignee liability. Provisions that expressly hold purchasers or

securitizers of loans liable for violations of the law committed by the
originator, under certain conditions. (See ch. 4 for more information on
assignee liability.)
In addition, according to the database we reviewed, 11 cities and counties

have passed laws of their own designed to address predatory lending since
2000.9 Some local laws are similar to state laws in that they define high-
cost loans and restrict their provisions, such as in Los Angeles, California.
Other localities, such as Oakland, California, have passed resolutions
prohibiting lenders that engage in predatory lending practices from doing
business with the locality.
9
In some cases, these laws were enacted but pending litigation stayed enforcement.

Chapter 3
Have Been Preempted
Some States Have Increased In general, states have regulated mortgage lenders and brokers, although to
the Regulation of Lenders varying degrees. Some state officials told us that because of concerns that
unscrupulous mortgage lenders and brokers were not adequately regulated
and Brokers and and were responsible for lending abuses, some states have increased their
Undertaken Enforcement regulation or licensing requirements of lenders and brokers. As part of
Activities to Combat their licensing requirements, states sometimes require that these
Predatory Lending companies establish a bond to help compensate victims of predatory
lenders or brokers that go out of business, and some states also require that
individuals working for or as mortgage lenders and brokers meet certain
educational requirements.
Some states have also reorganized their agencies’ operations to better

address abuses by lenders and brokers. For example, an official with the
Kansas Office of the State Banking Commissioner told us that in 1999 the
Kansas legislature created the Division of Consumer and Mortgage
Lending, which provides additional staff for examination and enforcement
activities. Similarly, an official from the Idaho Department of Finance told
us that the state created the Consumer Finance Bureau in 2000 to oversee
and conduct routine examinations of mortgage brokers and mortgage
lenders.
State law enforcement agencies and banking regulators have also taken a
number of actions in recent years to enforce existing state consumer
protection and banking laws in cases involving predatory lending. For
example, an official from the Washington Department of Financial
Institutions reported that it has taken several enforcement actions in recent
years to address predatory lending. In one such action, a California
mortgage company that allegedly deceived borrowers and made prohibited
charges was ordered to return more than $700,000 to 120 Washington State
borrowers. According to officials of the Conference of State Bank
Supervisors, states reported that in addressing predatory lending they have
usually relied on general state consumer protection laws in areas such as
fair lending, licensing, and unfair and deceptive practices. In some states,
consumer protection statutes do not apply to financial institutions, so state
banking regulators, rather than the attorneys general, typically initiate
enforcement activities. Because allegations of predatory practices often
involve lending activities in multiple states, states have sometimes
cooperated in investigating alleged abuses and negotiating settlements.
For example, in 2002 a settlement of up to $484 million with Household
Finance Corporation resulted from a joint investigation begun by the
attorneys general and financial regulatory agencies of 19 states and the

Chapter 3
Have Been Preempted
District of Columbia. State agencies have also conducted investigations in

conjunction with the federal government.
Activities in North States have varied in their approaches to addressing predatory lending
issues. We reviewed legislative and enforcement activities related to
Carolina and Ohio predatory lending in two states, North Carolina and Ohio, to illustrate two
Illustrate State different approaches.
Approaches to
Predatory Lending
Impact of North Carolina’s North Carolina has enacted two separate laws to address concerns about
Laws on High-Cost Loans predatory lending. In 1999, the legislature passed a law that attempted to
curb predatory lending by prohibiting specific lending practices and
and Licensing of Brokers
restricting the terms of high-cost loans.10 In 2001, North Carolina
and Originators Remains supplemented its predatory lending law by adopting legislation that
Uncertain required the licensing of mortgage professionals (mortgage lenders,
brokers, and loan officers), defined a number of prohibited activities
related to the making of residential mortgages, and enhanced the
enforcement powers of the banking commissioner.11
According to the North Carolina Commissioner of Banks, the North

Carolina laws applicable to predatory lending were the product of a
consensus of banks, mortgage bankers and brokers, nonprofit
organizations, and other stakeholders and were intended to address
lending abuses that were not prohibited by federal statutes and regulations.
Among other things, the 1999 legislation, known as the North Carolina Anti-
Predatory Lending Law, imposes limitations specific to both “high-cost”
10
N.C. Session Law 1999-332.
11
N.C. Sessions Laws 2001-393 and 2001-399.

Chapter 3
Have Been Preempted
loans and other “consumer home loans.”12 North Carolina’s predatory

lending law did not restrict initial interest rates but instead focused on
prohibiting specific lending practices and restricting the terms of high-cost
loans. In conjunction with other North Carolina laws, the 1999 legislation
contains four key features. First, it bans prepayment penalties for all home
loans with a principal amount of $150,000 or less. Second, it prohibits loan
flipping—refinancings of consumer home loans that do not provide a
reasonable, net tangible benefit to the borrower. Third, it prohibits the
financing of single-premium credit life insurance. Finally, it sets a number
of restrictions on high-cost loans, including making loans without regard to
borrowers’ ability to repay; financing points, fees, and any other charges
payable to third parties; or setting up loans with balloon payments.
Further, the law prohibits home improvement contract loans under which
the proceeds go directly to the contractor, and requires that borrowers
receive financial counseling prior to closing.
Although the North Carolina predatory lending law governs the practices of
lenders and mortgage brokers, some groups questioned whether it
provided for effective enforcement. Specifically, concerns were focused on
the lack of state licensing and oversight of all segments of the mortgage
lending profession, including mortgage brokers and bankers. Additionally,
some critics asserted that the statute provided the state banking
commissioner with limited and uncertain authority to enforce the
predatory lending provisions. As a result, even before the predatory
lending legislation passed, stakeholders worked on a measure to fill the
gaps left by the state’s predatory lending law.
12
The North Carolina predatory lending law defines a high-cost loan as a home loan of
$300,000 or less that has one or more of the following characteristics: (1) points, fees
(excluding certain amounts specified in the law), and other charges totaling more than 5
percent of the borrowed amount if the loan is $20,000 or more, or the lesser of 8 percent of
the amount borrowed or $1,000 if the loan is less than $20,000; (2) an interest rate that
exceeds by more than 10 percent per annum the yield on comparable Treasury bills; or (3) a
prepayment penalty that could be collected more than 30 months after closing or that is
greater than 2 percent of the amount prepaid. According to the North Carolina
Commissioner of Banks, the $300,000 cap is based on the presumption that those able to
borrow $300,000 or more are able to adequately protect themselves. “Consumer home
loans” are loans in which (i) the borrower is a natural person, (ii) the debt is incurred by the
borrower primarily for personal, family, or household purposes, and (iii) the loan is secured
by a mortgage or deed of trust upon real estate upon which there is located or there is to be
located a structure or structures designed principally for occupancy of from one to four
families which is or will be occupied by the borrower as the borrower’s principal dwelling.

Chapter 3
Have Been Preempted
North Carolina’s second statute, the Mortgage Lending Act, was signed into
law on August 29, 2001. Prior to the act, some mortgage banking firms and
all mortgage brokerages domiciled in the state had been required to
register with the state’s banking regulator, but individual loan originators
were not. The Mortgage Lending Act imposed licensing requirements on all
mortgage bankers and brokers, including individuals who originate loans,
and added continuing education and testing requirements for mortgage
loan officers. The provisions of the act mean that individuals as well as
firms are now subject to regulatory discipline. According to the North
Carolina Commissioner of Banks, the act has been effective in reducing the
number of abusive brokers and individual loan originators. The
commissioner noted that a large number of applications for licenses have
been denied because the applicants did not meet basic requirements or did
not pass the required background check.
Studies on the impact of North Carolina’s Anti-Predatory Lending Law have

offered conflicting conclusions. For example, one study found an overall
decline in subprime mortgages and concluded that any reductions in
predatory lending had been attained at the expense of many legitimate
loans.13 Some have pointed to this evidence as suggesting that the law has
reduced legitimate credit to those who most need it. Another study found a
reduction in subprime originations but attributed the decline to a reduction
in loans with abusive or predatory terms.14 Consumer advocates and state
officials have cited this study as evidence that the law has worked as
intended.
Our review of the five studies available on the impact of the North Carolina
predatory lending law suggested that data limitations and the lack of an
accepted definition of predatory lending make determining the law’s
impact difficult. For example, information about borrowers’ risk profiles,
the pricing and production costs of the loans, and the lenders’ and
borrowers’ behaviors was not available to the study researchers. In
addition, the extent to which any potential reductions in predatory loans
13
Elliehausen and Staten, Regulation of Subprime Mortgage Products: An Analysis of
North Carolina’s Predatory Lending Law, Georgetown University School of Business
(November 2002).
14
Quercia, Stegman, and Davis, The Impact of North Carolina’s Anti-Predatory Lending
Law: A Descriptive Assessment, Center for Community Capitalism, The Frank Hawkins
Kenan Institute of Private Enterprise, University of North Carolina at Chapel Hill (June 25,
2003).

Chapter 3
Have Been Preempted
can be attributed to the Mortgage Lending Act as opposed to the Anti-

Predatory Lending Law is unclear. Additional experience with the North
Carolina laws may be needed in order to properly assess them.
Ohio Has Preempted Local In February 2002, the Ohio legislature enacted a law with the purpose of
Laws and Taken Action to bringing Ohio law into conformance with HOEPA.15 Among other things,
the legislation preempted certain local predatory lending ordinances. The
Regulate Mortgage Brokers
law was passed in response to an ordinance enacted in the city of Dayton,
which was designed to fight predatory lending by regulating mortgage
loans originated in that city. Proponents of the state law argued that
regulating lenders is a state rather than municipal function and that lending
rules should be uniform throughout the state. Some advocates argued that
the state law prevents cities from protecting their citizens from abusive
lending practices.
The Ohio law imposes certain restrictions on high-cost loans as defined by

HOEPA. These include additional restrictions on credit life or disability
insurance beyond those imposed by HOEPA. The law also prohibits the
replacement or consolidation of a zero- interest rate or other low-rate loan
made by a governmental or nonprofit lender with a high-cost loan within
the first 10 years of the low-rate loan unless the current holder of the loan
consents in writing to the refinancing.16 Because the purpose of this law
was to bring Ohio’s law into conformance with HOEPA, the law applies
only to loans that qualify as mortgage loans subject to HOEPA. Thus, like
predatory lending laws in some other states, the Ohio law applies to
relatively few loans.
In May 2002, the Ohio legislature passed another piece of legislation,

designed in part to address abusive lending—the Ohio Mortgage Broker
Act—that imposed requirements on the state’s mortgage brokers and loan
officers.17 Among other things, this law required state examination,
education, and licensing of loan officers, and prohibited brokers from
engaging in certain deceptive or fraudulent practices. It also required that
15
See Ohio Rev. Code. Ann. § 1349.32 (2003).
16
Ohio Rev. Code Ann. § 1349.27 (2002).
17
See Ohio. Rev. Code Ann. §§ 1322.01 – 1322.12 (2003).

Chapter 3
Have Been Preempted
mortgage brokers and loan officers receive continuing education and take
prelicensing competency tests.
In the act adopting HOEPA standards, the Ohio legislature also established
a Predatory Lending Study Committee, which was charged with
investigating the impact of predatory lending practices on the citizens and
communities of Ohio.18 The study committee consisted of 15 members,
including representatives from state agencies, consumer groups, and the
lending industry. The act required the committee to submit a report to the
governor and legislators by the end of June 2003. The committee reached
consensus on two major issues. First, it recommended that all appraisers
in the state be licensed and subject to criminal background checks, and
second, it recommended increased enforcement of the Ohio Mortgage
Broker Act. The Division of Financial Institutions, which is responsible for
enforcing the Ohio Mortgage Broker Act, has hired additional staff to
ensure compliance with the law. The report and recommendations have
been forwarded to the governor and the committee suggested that the Ohio
General Assembly consider all recommendations.
Other local ordinances have been passed in Ohio to address predatory

lending. One of these ordinances, passed in November 2002 by the Toledo
City Council to regulate mortgage lending practices, was challenged, and
its enforcement stayed, because of the state HOEPA law passed in
February 2002.19 One provision of that ordinance prohibited making an
abusive loan by “taking advantage of a borrower’s physical or mental
infirmities, ignorance or inability to understand the terms of the loan.” This
provision drew criticism from the mortgage industry, which said the
language was vague and difficult to comply with. For example, one
secondary market participant noted that it would be nearly impossible to
assess borrowers’ mental capabilities for loans they did not originate in the
first place. Violating the law was made a criminal offense, and convicted
offenders could not receive city contracts or conduct other business with
the city.
18
2002 Ohio Laws HB 386 § 5.
19
Ordinance No. 271-03. As of November 17, 2003, the City of Toledo was temporarily
enjoined from enforcing application, enforcement, or other effectuation of this ordinance as
a result of a lawsuit asserting that the ordinance is preempted by the Home Ownership and
Equity Protection Act of Ohio. AFSA v. City of Toledo, Ohio, No. C10200301547 (Lucas
County).

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Have Been Preempted
Regulators Have Significant debate has taken place as to the advantages and disadvantages
of state and local predatory lending laws. In several cases, regulators of
Determined That federally supervised financial institutions have determined that federal
Federal Law Preempts laws preempt state predatory lending laws for the institutions they
regulate. In making these determinations, two regulators—OCC and
Some State Predatory OTS—have cited federal law that provides for uniform regulation of
Lending Laws, but federally chartered institutions and have noted the potential harm that
Views on Preemption state predatory lending laws can have on legitimate lending.
Representatives of the lending industry and some researchers agree with
Differ the federal banking regulators, arguing that restrictive state predatory
lending laws may ultimately hurt many borrowers by reducing the supply of
lenders willing to make subprime loans, creating undue legal risks for
legitimate lenders, and increasing the costs of underwriting mortgage
loans. Moreover, industry representatives have said that most predatory
lending practices are already illegal under federal and state civil and
criminal laws and that these laws should simply be more stringently
enforced. In contrast, many state officials and consumer advocates are
opposed to federal preemption of state predatory lending laws. They
maintain that federal laws related to predatory lending are insufficient, and
thus preemption interferes with their ability to protect consumers in their
states, particularly from any potential abuses by the subsidiaries of
federally chartered institutions.
OCC, OTS, and NCUA Have Because both the federal and state governments have roles in chartering
Determined That Federal and regulating financial institutions, questions can arise as to whether a
federal statute preempts particular state laws.20 Affected parties may seek
Law Preempts Some State
guidance from federal agencies requesting their views on whether a
Predatory Lending Laws particular federal statute preempts a particular state law; in these
instances, the agency may issue an advisory opinion or order on the issue.
Because the courts are ultimately responsible for resolving conflicts
between federal and state laws, these advisory opinions and orders are
subject to court challenge and review. As of November 2003, one or more
federal regulators had determined that federal laws preempted the
predatory mortgage lending laws of the District of Columbia and five
20
See U.S. General Accounting Office, Role of the Office of Thrift Supervision and Office of
the Comptroller of the Currency in the Preemption of State Law, GAO/GGD/OGC-00-51R
(Washington, D.C.: Feb. 7, 2000) for additional information on federal preemption of state
banking laws.

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Have Been Preempted
states—Georgia, New Jersey, New Mexico, New York, and North Carolina.
(See table 1.)
Table 1: Preemption Determinations Issued by OCC, OTS, and NCUA Related to

Predatory Mortgage Lending Laws
OCC OTS NCUA

Georgia (2003) Georgia (2003) Georgia (2002)
New York (2003) New York (2000)
New Mexico (2003) North Carolina (2002)
New Jersey (2003) District of Columbia (2003)
Source: GAO.
Preemption of state law is rooted in the U.S. Constitution’s Supremacy

Clause, which provides for the supremacy of federal law. Over the years,
the courts have developed a substantial body of precedent that has guided
the analysis of whether any particular federal law or regulation overrides or
preempts state law. The courts’ analysis of whether federal law preempts
state law has fundamentally centered on whether Congress intended for
the federal law or regulation to override state law, either from the face of
the statute itself (express preemption) or from the structure and purpose of
the statute (implied preemption.) In their preemption opinions, OCC, OTS,
and NCUA have cited a variety of legislation and legal precedents. Since
1996, OTS has had regulations in place that describe its preemption of state
lending laws.21 In January 2004, OCC issued a rule amending its regulations
in a similar manner, clarifying what types of state laws federal law
preempts in the context of national bank lending.22 OCC stated that it
issued the rule in response to the number and significance of the questions
that have arisen with respect to the preemption of state laws and to reduce
uncertainty for national banks that operate in multiple states. In its
rulemaking, OCC stated that it was seeking to provide more comprehensive
standards regarding the applicability of state laws to lending, deposit
taking, and other authorized activities of national banks. The regulations
21
2 C.F.R § 560.2(a).
22
69 Fed. Reg. 1904 (Jan. 13, 2004).

Chapter 3
Have Been Preempted
list examples of the types of state statutes that are preempted (such as laws
regulating credit terms, interest rates, and disclosure requirements) and
examples of the types of state laws that would not be preempted (such as
laws pertaining to zoning, debt collection, and taxation). When OCC first
proposed these rules, one news article stated that it “triggered a flood of
letters and strong reactions from all corners of the predatory lending
debate.” States and consumer groups were critical of the proposal. In
contrast, the Mortgage Bankers Association of America and some large
national banking companies wrote comment letters in support of OCC’s
proposed rules.
Views Differ on the Federal banking regulators point out that preemption of states’
Implications of Federal antipredatory lending laws applies only to institutions chartered by the
agency issuing the preemption order. For example, OTS’s preemption
Preemption of State
opinion served to preempt New Jersey’s predatory lending statute for
Predatory Lending Laws federally chartered thrifts but did not affect the statute’s applicability to
independent mortgage companies, national banks, and state-chartered
banks and thrifts. In preempting the New Jersey Home Ownership Security
Act of 2002, OTS’s Chief Counsel noted that requiring federally chartered
thrifts to comply with a hodgepodge of conflicting and overlapping state
lending requirements would undermine Congress’s intent that federal
savings institutions operate under a single set of uniform laws and
regulations that would facilitate efficiency and effectiveness.23 Federal
banking regulators have said that they have found little to no evidence of
predatory lending by the institutions they regulate, pointing out that
federally supervised institutions are highly regulated and subject to
comprehensive supervision.24 They have also noted that they have issued
guidance and taken numerous other steps to ensure that their institutions
do not engage in predatory lending. Further, OCC has stated that state
predatory lending laws, rather than reducing predatory lending among
federally supervised institutions, can actually restrict and inhibit legitimate
lending activity. The lending industry has generally supported preemption.
For example, the Mortgage Bankers Association of America has argued
23
Office of Thrift Supervision, P-2003-5, Preemption of New Jersey Predatory Lending Act
(July 22, 2003).
24
Several state law enforcement authorities have also said that predatory lending generally
occurs outside of banks and direct bank subsidiaries. See Brief of Amicus Curiae State
Attorneys General, National Home Equity Mortgage Ass'n v. OTS, Civil Action No. 02-2506
(GK) (D D.C.) (March 21, 2003) at 10-11.

Chapter 3
Have Been Preempted
that uniformity in lending regulations is central to an efficient and effective

credit market.
In contrast, many state officials and consumer advocates have opposed

federal preemption of state predatory lending laws, for several reasons.
First, they contend that state predatory lending laws are necessary to
address gaps in relevant federal consumer protection laws. For example,
one state official said that the predatory lending legislation adopted by his
state was more focused and effective than the provisions of the Federal
Trade Commission Act. In addition, opponents of preemption claim that
federal regulators may not devote the necessary resources or have the
willingness to enforce federal consumer protection laws relevant to
predatory lending by federally chartered institutions and their subsidiaries.
In response to OCC’s and OTS’s statements that there is no evidence of
predatory lending among subsidiaries of federally regulated depository
institutions, opponents of preemption noted that there are several cases in
which allegations of abusive lending practices involving some of these
subsidiaries have been raised.25
25
For example, see Comments on OCC Working Paper, Center for Responsible Lending,
7-10, October 6, 2003,
http://www.predatorylending.org/pdfs/CRLCommentsonOCCWorkingPaper.pdf.

Chapter 4
The Secondary Market May Play a Role in

Both Facilitating and Combating Predatory
Lending Chapte4
r
By providing lenders with an additional source of liquidity, the secondary

market can benefit borrowers by increasing the availability of credit and, in
general, lowering interest rates. While a secondary market for prime
mortgage loans has existed for decades, a relatively recent secondary
market for subprime loans now offers these potential benefits to subprime
borrowers as well. However, the secondary market may also serve to
facilitate predatory lending, as it can provide a source of funds for
unscrupulous originators that quickly sell off loans with predatory terms.
Secondary market participants may use varying degrees of due diligence to
avoid purchasing loans with abusive terms. In addition, some states have
enacted legislation with assignee liability—potentially holding purchasers
liable for violations of abusive lending laws that occurred in the loan
origination. However, extending liability to secondary market purchasers
may cause lenders and other secondary market participants, such as credit
rating agencies, to withdraw from the market, as occurred in Georgia.
The Development of a Originators of mortgage loans—which can include banks, other depository
institutions, and mortgage lenders that are not depository institutions—
Secondary Market for may keep the loans or sell them in the secondary market. Secondary
Subprime Loans Can market purchasers may then hold the loans in their own portfolio or may
pool together a group of loans and issue a mortgage-backed security that is
Benefit Consumers backed by a pool of such loans. The securitization of mortgage loans
became common during the 1980s and, by the 1990s, had become a major
source of funding in the prime mortgage market. According to the Office of
Federal Housing Enterprise Oversight, by the end of 2002 more than 58
percent of outstanding U.S. single-family residential mortgage debt was
financed through securitization. Two government-sponsored enterprises—
Fannie Mae and Freddie Mac—represented nearly 40 percent of the
amount securitized.1
The securitization of subprime mortgage loans did not become common

until the mid-1990s. The development of a secondary market for these
loans has been an important factor in the growth of subprime lending,
expanding subprime lenders’ access to funds and thus increasing the
availability of subprime credit. The trade journal Inside B&C Lending
estimated that in 2002 approximately 63 percent of new subprime
1
A government-sponsored enterprise (GSE) is a congressionally chartered, publicly owned
corporation established and accorded favored regulatory treatment to increase access to
the capital market for specific economic sectors, including housing.

Chapter 4
Lending
mortgages, representing $134 billion, were securitized. The originators of

subprime loans are often nonbank mortgage and finance companies. As
secondary market participants—such as the Wall Street investment firms
that have been the major underwriters for subprime securities—have
grown more willing to purchase these instruments, subprime originators
have gained access to an important source of liquidity that has allowed
them to make more subprime loans.
As shown in figure 4, the process of securitization starts with borrowers

obtaining mortgages either directly from a lender or through a broker. The
lender then creates a pool—a separate legal entity that purchases the
mortgages and issues securities based on them. The lender hires a credit
rating agency, which has no direct financial interest in the deal, to confirm
the value of the securities based on the expected return and risks of the
underlying mortgages. At the same time, the lender hires an underwriter to
sell the securities to investors. The value of the securities is based
exclusively on the mortgages themselves and is separate from the financial
condition of the original lender. Finally, a servicer is hired to collect
mortgage payments from the borrowers and disburse interest and principal
payments to the investors. The process described above is for
securitizations performed via private conduits—that is, without the
participation of government-sponsored enterprises.

Chapter 4
Lending
Figure 4: Steps in the Securitization of Residential Mortgages
Mortgage payments
Borrower takes out loan
and makes mortgage payments
Mortgage broker brings Lender provides funds to borrower

borrower and lender together in exchange for mortgage note
Lender creates a legally independent

entity (a "pool") and sells loans to the pool
Credit rating agency Pool issues securities and

rates securities sells them to underwriter
Securities underwriter underwrites securities,

sets initial price, and sells them to investors
Cash Servicer collects

Investors purchase disbursements payments and
securities and receive disburses interest
interest and principal and principal
Source: GAO.
Note: This chart represents the process for fully private securitizations and not for government-
sponsored enterprises.
Freddie Mac and Fannie Mae are relatively recent entrants into the
subprime market; Freddie Mac began purchasing subprime loans in 1997
and Fannie Mae in 1999. Both companies have moved slowly and have
limited their purchases to the segment of the subprime market with the
most creditworthy of subprime loans. At present, the companies are
believed to represent a relatively small portion of the overall secondary
market for subprime loans. The exact portion they represent is not clear,
but a study conducted for HUD estimated that the companies purchased

Chapter 4
Lending
about 14 percent of the subprime loans originated in 2002.2 Both Fannie

Mae and Freddie Mac have stated publicly that they plan on expanding
their role in the subprime market in the future. In part, this may be a result
of the affordable housing goals that HUD set for the GSEs in October 2000,
which increased the goals for loans made to low- and moderate-income
borrowers.3 HUD recommended that the GSEs consider enhancing their
roles in the subprime market—which often serves low- and moderate-
income borrowers—to help standardize mortgage terms in that market and
potentially reduce interest rates for subprime borrowers. While the GSEs
are currently believed to represent a small portion of the secondary market
for subprime lending, some market observers believe their share will grow.
The growth of the secondary market for subprime loans has potentially
benefited some consumers. By providing subprime lenders with a new
source of liquidity, these lenders face lower funding costs and reduced
interest rate risk, in part because the supply of lenders willing to make
loans to borrowers with impaired credit has increased. Many analysts say
that, as a result, mortgage loans are now available to a whole new
population of consumers and interest rates on subprime loans made by
reputable lenders have fallen. In addition, increased securitization of
subprime lending may lead to more uniform underwriting of subprime
loans, which could further reduce origination costs and interest rates to
consumers.
2
K. Temkin, J. Johnson, D. Levy, “Subprime Markets, the Role of GSEs, and Risk-Based
Pricing,” prepared by The Urban Institute for the U.S. Department of Housing and Urban
Development, March 2002. Other estimates of the GSEs’ share of securitization of the
subprime market have varied, in part because—as noted earlier—there is no consistent
industry definition of what constitutes subprime.
3
The Federal Housing Enterprises Financial Safety and Soundness Act of 1992 requires
Fannie Mae and Freddie Mac to meet annual percent-of-business housing goals established
by HUD for three categories: low- and moderate-income, underserved, and special
affordable. HUD set the following goals for 2001 through 2003: low- and moderate-income—
50 percent of the total number of units financed; underserved—31 percent of the total
number of units financed; and special affordable—20 percent of the total number of units
financed.

Chapter 4
Lending
The Secondary Market While the development of a secondary market for subprime loans may have
benefits for borrowers, it can also provide a source of funds for
for Subprime Loans unscrupulous originators that quickly sell off loans with predatory terms.
Can Facilitate The secondary market can complicate efforts to eliminate predatory
lending by separating ownership of a loan from its originator. This
Predatory Lending separation can undermine incentives to reduce risk in lending and create
incentives that may increase the attractiveness of making loans with
predatory terms. As noted earlier, some originators of subprime mortgage
loans make their profits from high origination fees. The existence of a
market that allows originating lenders to quickly resell subprime loans may
reduce the incentive these lenders have to ensure that borrowers can repay.
Further, lenders often market their products through brokers that do not
bear the risks associated with default, as brokers are compensated in up-
front fees for the loans they help originate. Some lenders and state officials
told us that unscrupulous brokers sometimes deceive originating lenders
regarding borrowers’ ability to repay. Even if deceived, lenders who
originate the loans and then sell them in the secondary market ultimately
may not bear the risk of a loan default. Taken together, these
circumstances can undermine efforts to combat predatory lending
practices.
Market forces provide some incentives to deter secondary market

purchasers from purchasing predatory loans because these loans create
both credit and reputation risk.4 However, predatory loans do not in all
cases create unusual financial risks or losses for secondary market
purchasers. For example, in most states loan purchasers are generally not
liable for damages that may have resulted from the origination of abusive
loans that they purchased, mitigating much of the legal risk of buying loans
that may have violated laws addressing predatory lending. Moreover, loans
with predatory features may carry very high interest rates and have barriers
to prepayment, which may more than compensate for the increased credit
risks associated with subprime loans.
However, investors’ insistence on the use of credit enhancements in the

securitization process may offset or mitigate the incentives to engage in
predatory lending of originators who sell loans to the secondary market.
4
Reputation risk is the current and prospective impact on a company’s earnings and capital
arising from negative public opinion from other market participants. This risk may expose a
misbehaving originator or lender to litigation, financial loss, and a decline in its customer
base if its behavior injures its customers or clients.

Chapter 4
Lending
Credit enhancements, which refer to a variety of approaches used to

reduce the credit risk of an obligation, are common in securitization
transactions, in part because of concerns that originators may try to pass
on lower-quality loans. Because the price investors will pay for securities is
based on risk as well as return, sellers use the enhancements to lower the
risk and thus raise the price of securities. For example, the securities may
be overcollateralized by ensuring that the value of the collateral backing
the securities—in the case of mortgage backed securities, the face value of
the loans—exceeds the value of the securities being offered for sale. The
difference provides a “cushion” or reserve against possible credit losses
and permits a higher loss rate on the total mortgage pool without
endangering payments to the owners of the securities. Securitizers can
also include recourse provisions in their loan purchases that require sellers
to take back loans in the event of borrower default. As a result of these
factors, the degree to which originators of loans sold in the secondary
market—including loans with abusive terms—are insulated from credit
risks associated with those loans varies, and the profits from selling the
loans may vary with the costs of credit enhancement.
Due Diligence Can Secondary market purchasers of residential mortgage loans undertake a
process of due diligence designed to minimize legal, financial, and
Help Purchasers Avoid reputation risk associated with the purchase of those loans. Due diligence
Predatory Loans, but can play an important role in avoiding the purchase of abusive loans, but
cannot necessarily identify all potentially abusive loans. Officials of Fannie
Efforts Vary among Mae and Freddie Mac—which, as noted previously, are relatively recent
Secondary Market entrants in the subprime market—are also concerned about risks but say
Participants that their due diligence processes are also designed to avoid purchasing
loans that may have been harmful to consumers. Other firms’ due diligence
is not necessarily specifically intended to avoid loans that may have
harmed consumers but rather to avoid purchasing loans that are not in
compliance with applicable law or that present undue financial or
reputation risks.5
5
OCC has issued guidelines stating that national banks are expected to undertake
appropriate due diligence to avoid purchasing predatory loans. See OCC Advisory Letter
2003-3 (Avoiding Predatory and Abusive Lending Practices in Brokered and Purchased
Loans), February 21, 2003.

Chapter 4
Lending
Due Diligence May Deter Loans purchased in the secondary market are usually not purchased
the Purchase of Some individually but rather as a pool of many loans. Purchasers or securitizers
of residential mortgage loans try to ensure that the loans in a particular
Predatory Loans but Has pool are creditworthy and in compliance with law. Purchasers perform a
Limitations general background and financial review of the institutions from which
they purchase loans. In addition, secondary market purchasers of loans
nearly always conduct due diligence, or a review and appraisal of
confidential legal and financial information related to the loans themselves.
Before or after the sale, purchasers may review electronic data containing
information on the loans, such as the loan amount, interest rate, and
borrower’s credit score. Purchasers also may physically review a sample of
individual loans, including items such as the loan applications and
settlement forms.
Some industry representatives and federal agencies say that appropriate

due diligence can play an important role in deterring predatory lending.
Participants in the secondary market have an interest in not purchasing
loans that may be considered predatory because such loans can create
unwarranted legal, financial, and reputation risk. For example, if such
loans violate relevant municipal, state, or federal laws, purchasing them
could, in some cases, expose the buyers to legal risks such as lawsuits,
fines, and penalties. Moreover, predatory loans may be more likely to go
into default, increasing financial risk without a commensurate increase in
expected returns. In addition, many industry officials told us that
reputation risk is a major reason why they want to avoid purchasing
predatory loans. Firms involved in the securitization process do not want
to be associated with predatory lending activity that could affect their
relationships with other firms, community groups, and government
agencies.
Due diligence reviews for residential mortgage loans are designed to

determine the financial characteristics of the loans and to ensure
compliance with applicable federal, state, and municipal laws, including
those designed to prohibit predatory lending. The reviews also can be
designed to detect loans that have potentially abusive terms but are not
necessarily violating any law. For example, an electronic review of loan
data can flag characteristics such as interest rates that appear excessive
but are nonetheless legal. A loan-level file review, in which a purchaser
reviews the physical loan origination documents, offers access to more
information and can highlight items such as points and fees and the
borrower’s capacity to repay. While nearly all purchasers of loans use due

Chapter 4
Lending
diligence to check for legal compliance, purchasers set their own

guidelines for what other loan characteristics meet their standards.
While due diligence in the secondary market is important, the role that it
can play in deterring predatory lending by performing due diligence is
limited. For one thing, more than one-third of all new subprime loans are
not securitized in the first place but are held in the portfolio of the
originating lender and thus do not face securitizers’ due diligence reviews.
In addition, even the most thorough due diligence will not necessarily catch
all abusive loans or abusive lending practices. For example:
• Due diligence may not detect fraud in the underwriting or approving of a

mortgage. For instance, if a mortgage broker includes false information
in a loan application to ensure that a borrower meets an originator’s
income requirements, the process of due diligence may not detect it.6
• The data tapes used for loan reviews do not include point and fee
information.7 Thus, securitizers typically cannot detect excessive or
unwarranted fees prior to purchasing a loan without a loan-level review.
• Loan flipping (repeated refinancings) can be difficult to detect because

loan files do not necessarily include information on previous
refinancings.
Fannie Mae and Freddie Fannie Mae and Freddie Mac have relatively strict criteria for the loans
Mac Appear to Perform they purchase, particularly subprime loans. As noted, both companies limit
their purchases to the most creditworthy subprime loans. In April 2000,
Extensive Due Diligence to
Fannie Mae issued guidelines to sellers of subprime loans that set criteria
Avoid Buying Loans with designed to help the GSE avoid purchasing loans with abusive features.
Abusive Terms For example, the guidelines state that Fannie Mae’s approved lenders may
not “steer” a borrower who qualifies for a standard loan to a higher cost
6
Some securitizers have begun to use fraud detection software as part of their due diligence
of residential mortgage loans. Such software analyzes specific data fields within a loan file
and looks for characteristics and inconsistencies that may signal fraud in the appraisal, loan
application, or loan itself. In some cases, a fraud review can also be incorporated as part of
the regular due diligence process.
7
A prepurchase financial due diligence review may not look at point and fee data because
the risks and returns to the loan purchaser depend not on payments that were made at
origination but rather on future payments by the homeowner. However, a review of points
and fees is often done during a subsequent loan-level file review.

Chapter 4
Lending
product, may not make loans without regard to the borrower’s ability to
repay, and may not in most instances charge more than 5 percent of the
loan amount in points and fees. Freddie Mac issued similar guidelines to its
sellers and servicers in December 2000. Further, both companies, like
other secondary market purchasers, rely on a system of representations
and warranties, under which sellers contractually agree to buy back loans
they sell that turn out not to meet the terms of the contract.
Fannie Mae and Freddie Mac officials told us that they undertake a series
of measures aimed at avoiding the purchase of loans with predatory
characteristics. Approved sellers and servicers undergo a background
check and operational review and assessment that seeks, in part, to
determine whether lenders are able to comply with their guidelines. Fannie
Mae and Freddie Mac also require that special steps, such as additional due
diligence measures, be taken in purchasing subprime loans. For example,
Fannie Mae requires that subprime loans be originated using the company’s
automated desktop underwriting system, which helps ensure that
borrowers are not being steered to a more expensive loan than they qualify
for.8 Fannie Mae officials say that the automated desktop underwriting
system also facilitates traditional lenders that serve subprime borrowers.
In addition, both companies said that they undertake extensive and costly
due diligence that goes well beyond simple legal compliance and is aimed
at avoiding loans that may potentially be considered abusive or detrimental
to the borrower. Both companies use an outside contractor to conduct
their loan-level due diligence reviews on subprime loans. The contractor
has a standard “script” that reviews a large number of data elements related
to legal compliance and creditworthiness. However, the contractor told us
that Fannie Mae and Freddie Mac add elements to the script to make the
review more stringent with regard to identifying potentially abusive
practices. For example, Freddie Mac requires the contractor to check
whether the lender has gathered evidence of a borrower’s income
information directly or relied on self-verification, which can raise
uncertainty about a borrower’s capacity to repay. In addition, the
8
Fannie Mae and Freddie Mac officials note that their antipredatory lending policies and
compliance measures are only one element in their efforts to fight predatory lending. For
example, both companies also have special programs that provide appropriately priced
loans to credit-impaired borrowers and other consumers who tend to be targeted by
predatory lenders; support homebuyer education and counseling for at-risk individuals; and
have special loan programs designed for borrowers who have been targeted or victimized by
predatory lenders.

Chapter 4
Lending
contractor told us that Fannie Mae and Freddie Mac are more likely than
other firms to reject or require a repurchase if evidence exists that the loan
may involve a predatory practice—even if the loan is otherwise legally
compliant.
Other Purchasers Vary in According to industry representatives, all purchasers of mortgage loans
the Extent of Their Due undertake a process of due diligence, but the process can vary in its degree
of stringency and comprehensiveness. For example, while most firms
Diligence
typically pull a sample of loans for a loan-level file review, companies may
review anywhere between a few percent and 100 percent of the loans. In
addition, companies vary in terms of the data elements they choose to
review. Some firms review prior loans made to the borrower in an effort to
detect loan flipping, while others do not. Further, some companies may be
more willing than others to purchase loans that are considered
questionable in terms of legal compliance, creditworthiness, or other
factors.
As noted earlier, loans that have harmed consumers and that may be
deemed “predatory” by some observers are not necessarily against the law,
nor do they necessarily increase the risk of the loan.9 Industry officials told
us that while securities firms are concerned with the reputation risk that
may come with purchasing abusive loans, the primary function of their due
diligence is to ensure compliance with the law and to protect investors by
ensuring that loans are creditworthy.10
9
One example would be steering borrowers to higher-cost loans than is justified by their
credit histories. This practice is often considered abusive but is not per se a violation of
federal law, nor does it necessarily increase credit risk to the lender.
10
Reputation risk can also be an issue for sellers of loans to the secondary market. Regularly
selling loans that later create risks and costs for secondary market purchasers may close off
the seller’s access to the secondary market.

Chapter 4
Lending
Assignee Liability May Some states have enacted predatory lending laws that have assignee
liability provisions under which purchasers of secondary market loans may
Help Deter Predatory be liable for violations committed by the originators or subject to a defense
Lending but Can Also by the borrower against collecting the loan. Assignee liability is intended
to discourage secondary market participants from purchasing loans that
Have Negative may have predatory features and to provide an additional source of redress
Unintended for victims of abusive lenders. However, depending on the specific nature
Consequences of the provision, assignee liability may also have unintended consequences,
including reducing access to or increasing the cost of secondary market
capital for legitimate loans. For example, assignee liability provisions of a
predatory lending law in Georgia have been blamed for causing several
participants in the mortgage lending industry to withdraw from the market,
and the provisions were subsequently repealed.
Several States Hold Antipredatory lending laws in several states have included some form of
Secondary Purchasers assignee liability. Typically, with assignee liability, little or no distinction is
made between the broker or lender originating a loan that violates
Liable for Predatory
predatory lending provisions and the person who purchases or securitizes
Lending Violations the loans. Under these provisions, secondary market participants that
acquire loans may be liable for violations of the law committed by the
original lenders or brokers whether or not the purchasers were aware of
the violations at the time they bought the loans. Further, borrowers can
assert the same defenses to foreclosure against both originating lenders
and entities in the secondary market that hold the loans (the assignees).
Depending on the specific provisions of the law, assignees may have to pay
monetary damages to aggrieved borrowers.
As of December 2003, at least nine states and the District of Columbia had
enacted predatory lending laws that expressly included assignee liability
provisions, though the nature of these provisions varies greatly, according
to the database of state and local legislation we reviewed. Other states
have passed predatory lending laws that do not explicitly provide for
assignee liability, but debate has occurred in some of these states about
whether assignee liability can be asserted anyway under existing laws or
legal principles. The federal HOEPA statute includes an assignee liability
provision, but, as noted in chapter 2, only a limited number of subprime
loans are covered under HOEPA.
Assignee liability can take a variety of forms. For example, an assignee can
be held liable only in defensive claims (defense to foreclosure actions and

Chapter 4
Lending
to claims regarding monies owed on a loan) or can also be assessed for

damages directly, including punitive damages.11 Similarly, some laws
include “safe harbor provisions,” under which assignee liability may not
arise if the assignee has taken certain measures to avoid obtaining a high-
cost loan. For example, under New Jersey law, no assignee liability arises
if the assignee demonstrates, by a preponderance of evidence, that a
person exercising reasonable due diligence could not determine that the
mortgage was a high-cost home loan.12 However, many secondary market
participants told us that the value of these safe harbor provisions is limited,
in part because of difficulties in demonstrating compliance with safe
harbor standards. For example, some secondary market participants say
that the New Jersey law does not adequately define what constitutes
“reasonable” due diligence.
Assignee Liability May Help The issue of whether to include assignee liability provisions in state and
Combat Predatory Lending local predatory lending laws has been highly controversial, because such
provisions can potentially both confer benefits and cause problems.
but May Also Hinder
Assignee liability has two possible primary benefits. First, holding
Legitimate Lending purchasers and securitizers of loans liable for abusive lending violations
provides them with an incentive not to purchase predatory loans in the first
place. If secondary market participants took greater action—through
policy decisions or stricter due diligence—to avoid purchasing potentially
abusive loans, originators of predatory loans would likely see a steep
decline in their access to secondary market capital. Second, under some
forms of assignee liability, consumers who have been victimized by such
lenders may have an additional source of redress. In some cases,
originators of abusive loans that have been sold in the secondary market
are insolvent or cannot be located, leaving victims dependent on assignees
for relief from foreclosure or other redress.
11
Under New York’s law, an assignee seeking to enforce a loan against a borrower in default
or in foreclosure is subject to the borrower’s claims and defenses to payment that the
borrower could assert against the original lender. See NY Banking Law § 6-l (2003). Under
Maine’s law, an assignee may be subject to all claims and defenses that the borrower may
assert against the creditor of the mortgage. See Maine Rev. Stat. Ann. Title 9-A § 8-209
(2003).
12
See, e.g., N.J. Stat. Ann. § 46:10B-27 (West 2003); see also, 815 Ill. Comp. Stat. 137/135
(2003).

Chapter 4
Lending
However, assignee liability provisions may also have the serious if

unintended consequence of discouraging legitimate secondary market
activity. Secondary market participants say that because they do not
originate the loans they purchase, even the most stringent due diligence
process cannot ensure that all loans comply with applicable law. In
addition, some secondary market participants state that assignee liability
provisions require them to make subjective determinations about whether
the loans are in compliance with law, and this ambiguity can create legal
and financial risk. These factors, industry participants say, can actually end
up harming consumers by raising the costs of ensuring compliance with the
law and thus increasing the cost of loans to borrowers. Further, if
secondary market participants are not willing to risk having to assume
liability for violations committed by originators, they may pull out of the
market altogether, reducing the availability and increasing the costs of
legitimate subprime credit. Finally, if states’ predatory lending laws have
different terms and provisions regarding assignee responsibilities, the
secondary market as a whole could become less efficient and liquid, further
increasing rates on legitimate subprime mortgages.
Credit rating agencies have been among the secondary market players that
have expressed concern about assignee liability provisions in state
predatory lending laws. When a residential mortgage-backed security is
created from a pool of loans, an independent credit rating agency examines
the security’s underlying loans and assigns it with a credit rating, which
represents an opinion of its general creditworthiness. Credit rating
agencies need to monetize (measure) the risk associated with the loans
underlying a security in order to assign a credit rating. Because assignee
liability can create additional legal and financial risks, the major credit
rating agencies typically review new predatory lending legislation to assess
whether they will be able to measure that risk adequately to rate securities
backed by loans covered under the law.
We talked with representatives of two major credit rating agencies, firms

that issue mortgage-backed securities, and the GSEs Fannie Mae and
Freddie Mac to better understand how specific assignee liability provisions
might affect their ability to conduct secondary market transactions. In
general, the representatives told us that the most problematic assignee
liability provisions for secondary market participants are those with two
characteristics:
• Ambiguous language. Credit rating agencies and other secondary

market players seek clear and objective descriptions of the loans

Chapter 4
Lending
covered by the statutes and the specific actions or omissions that

constitute a violation. For example, some participants cited concerns
about an ordinance enacted in Toledo, Ohio, that prohibited taking
advantage of a borrower’s “physical or mental infirmities” but did not
define what constituted such infirmities.13 Secondary market
participants noted that without objective criteria, there is no way to
ensure that an originator has complied adequately with the law.
• Punitive Damages. Under some assignee liability provisions, the

potential damages a borrower can receive are restricted to the value of
the loan, while other provisions allow for punitive damages, which are
not necessarily capped. Secondary market participants say that the
potential for punitive damages can make it very difficult to quantify the
risk associated with a security.
Georgia’s Statute Illustrates According to officials of industry and consumer advocacy organizations,
Possible Effects of Assignee the Georgia Fair Lending Act, which became effective on October 1, 2002,
was one of the strictest antipredatory lending laws in the nation.14 It
Liability Provisions
banned single-premium credit insurance and set restrictions on late fees for
all mortgage loans originated in the state and, for a special category of
“covered loans,” prohibited refinancing within 5 years after consummation
of an existing home loan unless the new loan provided a “tangible net
benefit” to the borrower. The act also created a category of “high-cost
loans” that were subject to certain restrictions, including limitations on
prepayment penalties, prohibitions on balloon payments, and prohibitions
on loans that were made without regard to the borrower’s ability to repay.
13
City of Toledo Ordinance No. 291-02 (Oct. 4, 2002).
14
The Georgia Fair Lending Act is codified at GA Code Ann. §§ 7-6A-1 et. seq. OTS, NCUA,
and OCC have determined that the Georgia law does not apply to the institutions they
supervise because it is preempted by federal law. See Office of Thrift Supervision, P-2003-1,
Preemption of Georgia Fair Lending Act (Jan. 21, 2003); National Credit Union
Administration, 02-0649, Applicability of Georgia Fair Lending Act to Federal Credit Unions
(July 29, 2002); National Credit Union Administration, 03-0412, NCUA Preemption of the
Georgia Fair Lending Act (Nov. 10, 2003); and OCC Preemption Determination and Order,
Docket No. 03-17 (July 30, 2003). Because Georgia law contains a parity provision under
which its state-chartered banks are treated similarly to national banks, Georgia’s
Commissioner of Banking and Finance ruled that Georgia-chartered banks also are not
subject to the Fair Lending Act. See Declaratory Ruling: Effect of Preemption of Georgia
Fair Lending Act by the OCC on July 30, 2003 (Aug. 5, 2003).

Chapter 4
Lending
The act also included fairly strict assignee liability. Secondary market
participants that purchased high-cost loans were liable for violations of the
law committed by the originator of the loans they purchased, while
purchasers of covered loans were subject to borrower defenses and
counterclaims based on violations of the act. The act also expressly made
mortgage brokers and loan servicers liable for violations. Remedies
available to borrowers included actual damages, rescission of high-cost
loans, attorney fees, and punitive damages. Most of the violations were
civil offenses, but knowing violations constituted criminal offenses.
Shortly after the Georgia Fair Lending Act took effect, several mortgage
lenders announced that they would stop doing business in the state due to
the increased risk they would incur. In addition, several secondary market
participants stated their intention to cease doing business in Georgia. In
January 2003, the credit rating agency Standard & Poor’s announced it
would stop rating mortgage-backed securities in Georgia because of the
uncertainty surrounding potential liability under the act. Standard & Poor’s
decision extended to securitizations of virtually all loans in the state, not
just those of covered or high-cost loans. The company said that because
the act did not provide an unambiguous definition of which loans were
covered (and therefore subject to assignee liability), it could not adequately
assess the potential risk to securitizers. In addition, the company said that
it was concerned about an antiflipping provision that did not adequately
define what constituted the “net tangible benefit” to borrowers that certain
refinancings had to provide. The two other major credit rating agencies,
Moody’s and Fitch, also said that the law would limit their ability to rate
mortgage-backed securities in Georgia.
In response to these events, the Georgia legislature amended the Georgia

Fair Lending Act on March 7, 2003. The amendments eliminated the
category of “covered home loans” and the restrictions that had existed for
that category of loans. In addition, the amendments greatly reduced the
scope of assignee liability under the law, restricting such liability to “high-
cost” loans, and then only when the assignee is unable to show that it has
exercised reasonable due diligence to avoid purchasing them. In addition,
the amendments capped the amount of damages an assignee can face and
prohibited assignee liability in class-action lawsuits. Once these
amendments were passed, credit rating agencies announced that they
would once again rate securities backed by mortgage loans originated in
Georgia, and lenders said they would continue to do business in the state.
Advocates of the original Georgia law argued that the legislature
overreacted to actions by some members of the lending industry, and many

Chapter 4
Lending
activists said that Standard & Poor’s and others had engaged in an
orchestrated effort to roll back the Georgia Fair Lending Act. Industry
representatives said that the response by lenders and others was a
reasonable response to a statute that created unacceptable risks of legal
liability for lenders and assignees.
Policymakers and industry representatives have frequently cited the events

in Georgia as a lesson in what can happen when secondary market
participants are held liable for violations by the original lender. Industry
representatives assert that assignee liability creates undue risks to the
secondary market, or makes assessing risks difficult, and ultimately
reduces borrowers’ access to credit. In the case of Georgia, however, it is
unclear whether the problem was assignee liability itself or the scope and
characteristics of the specific assignee liability provisions contained in the
original law. Georgia’s original law created concern in large part because
of perceived ambiguities in defining which loans were subject to assignee
liability and because assignees’ liability was subject to unlimited punitive
damages. Not all states with antipredatory lending statutes that include
assignee liability provisions have had lenders and credit agencies threaten
to withdraw from the market to the same extent, largely because these
laws generally cap an assignee’s liability, create a safe harbor, or contain
less ambiguous language. The challenge to states that choose to impose
assignee liability is to craft provisions that may serve their purpose of
deterring predatory lending and providing redress to affected borrowers
without creating an undue adverse effect on the legitimate lending market.

Chapter 5
The Usefulness of Consumer Education,

Counseling, and Disclosures in Deterring
Predatory Lending May Be Limited Chapte5
r
A number of federal, state, nonprofit, and industry-sponsored organizations

offer consumer education initiatives designed to deter predatory lending
by, among other things, providing information about predatory practices
and working to improve consumers’ overall financial literacy. While
consumer education efforts have been shown to have some success in
increasing consumers’ financial literacy, the ability of these efforts to deter
predatory lending practices may be limited by several factors, including the
complexity of mortgage transactions and the difficulty of reaching the
target audience. Similarly, unreceptive consumers and counselors’ lack of
access to relevant loan documents can hamper the effectiveness of
mortgage counseling efforts, while the sheer volume of mortgage
originations each year makes universal counseling difficult. While efforts
are under way to improve the federally required disclosures associated
with mortgage loans, their potential success in deterring predatory lending
is likewise hindered by the complexity of mortgage transactions and by the
lack of financial sophistication among many borrowers who are the targets
of predatory lenders.
Many Consumer In response to widespread concern about low levels of financial literacy
among consumers, federal agencies such as FDIC, HUD, and OTS have
Education and conducted and funded initiatives designed in part to raise consumers’
Mortgage Counseling awareness of predatory lending practices. In addition, a number of states,
nonprofits, and trade organizations have undertaken consumer education
Efforts Exist, but initiatives. Prepurchase mortgage counseling—which can include a third
Several Factors Limit party review of a prospective mortgage loan—may also help borrowers
Their Potential to avoid predatory loans, in part by alerting them to the characteristics of
predatory loans. In some circumstances, such counseling is required.
Deter Predatory However, a variety of factors limit the potential of these tools to deter
Lending predatory lending practices.

Chapter 5
Predatory Lending May Be Limited
Some Federal Agencies A number of federal agencies and industry trade groups have advocated
Have Initiatives to Promote financial education for consumers as a means of improving consumers’
financial literacy and addressing predatory lending. The Department of the
Awareness of Predatory Treasury, as well as consumer and industry groups, have identified the lack
Lending of financial literacy in the United States as a serious, widespread problem.1
Studies have shown that many Americans lack a basic knowledge and
understanding of how to manage money, use debt responsibly, and make
wise financial decisions.2 As a result, some federal agencies have
conducted or funded programs and initiatives that serve to educate and
inform consumers about personal financial matters. For example:
• FDIC sponsors MoneySmart, a financial literacy program for adults with

little or no banking experience and low to moderate incomes. FDIC
officials told us that the program, in effect, serves as one line of defense
against predatory lending. The MoneySmart curriculum addresses such
topics as bank services, credit, budgeting, saving, credit cards, loans,
and homeownership. MoneySmart is offered free to banks and others
interested in sponsoring financial education workshops.
• The Federal Reserve System’s Community Affairs Offices issue media

releases and distribute consumer education publications to financial
institutions, community organizations, and to consumers directly.
These offices also have hosted conferences and forums on financial
education and predatory lending and have conducted direct outreach to
communities targeted by predatory lenders.
1
The Fair and Accurate Credit Transactions Act of 2003 (Pub. L. No. 108-159), which was
enacted on December 4, 2003, addresses financial literacy in a number of its provisions.
Among other things, it establishes a financial literacy and education commission consisting
of representatives of FTC, the federal banking regulators, HUD, the Department of the
Treasury, and other federal agencies.
2
See National Endowment for Financial Education, “Financial Literacy in America:
Individual Choices, National Consequences,” report based on the symposium “The State of
Financial Literacy in America: Evolutions and Revolutions,” October 2002 (Greenwood
Village, Colorado, 2002), 1 and 6; Maude Toussaint-Comeau and Sherrie L.W. Rhine,
“Delivery of Financial Literacy Programs,” Policy Studies, Consumer Issues Research
Series, Consumer and Community Affairs Division, Federal Reserve Bank of Chicago (2000),
1; Marianne A. Hilgert, Jeanne M. Hogarth, and Sondra Beverly, “Household Financial
Management: The Connection between Knowledge and Behavior,” Federal Reserve Bulletin,
July 2003, 309 and 311.

Chapter 5
• OTS and NCUA have worked with community groups on financial

literacy issues and have disseminated financial education materials,
including literature on predatory lending issues, to their respective
regulated institutions.
• HUD has developed and distributed a brochure titled Don’t Be a Victim

of Loan Fraud: Protect Yourself from Predatory Lenders, which seeks
to educate consumers who may be vulnerable to predatory lending,
especially the elderly, minorities, and low-income homeowners.
• Federal banking regulators give positive consideration in Community

Reinvestment Act performance reviews to institutions for providing
financial education to consumers in low- and moderate-income
communities.
• OCC issued an advisory letter in 2001 providing detailed guidance for

national banks, encouraging them to participate in financial literacy
initiatives and specifying a range of activities that banks can provide to
enhance their customers’ financial skills, including support for
educational campaigns that help borrowers avoid abusive lending
situations.3
• FTC and DOJ disseminate information designed to raise consumers’

awareness of predatory lending practices, particularly those involving
fraudulent acts. Brochures and other consumer materials are distributed
on the agencies’ Web sites, as well as through conferences and seminars,
local consumer protection agencies, consumer credit counselors, state
offices, and schools. FTC has also supported public service
announcements on radio and television, including Spanish-speaking
media.
Some of these initiatives are general financial education programs that do

not specifically address predatory home mortgage lending, some address
predatory lending practices as one of a number of topics, and a few focus
specifically on predatory lending. Some of these initiatives are directed to
a general audience of consumers, while others are directed toward low-
income or other communities that are often the targets of predatory
lenders. A number of different media have been used to deliver the
messages, including print and online materials, speeches and spot
3
OCC Advisory Letter 2001-1, Financial Literacy, January 16, 2001.

Chapter 5
announcements, and materials for the hearing- and visually impaired. In

some cases, consumer financial education materials have been produced in
a variety of languages, including Arabic, Chinese, Korean, and Spanish.
Federal agencies’ consumer education campaigns typically take place in
partnership with other entities, including community and nonprofit groups
and state and local agencies.
Federal agencies have taken some actions to coordinate their efforts

related to educating consumers about predatory lending. For example, in
October 2003, the Interagency Task Force on Fair Lending, which consists
of 10 federal agencies, published a brochure that alerts consumers to
potential pitfalls of home equity loans, particularly high-cost loans. The
brochure Putting Your Home on the Loan Line is Risky Business
describes common predatory lending practices and makes
recommendations to help borrowers avoid them.
State Agencies, Nonprofits, Some state agencies have also sponsored consumer education initiatives
and Industry Organizations that address predatory lending. For example, the Connecticut Department
of Banking offers an educational program in both English and Spanish that
Have Also Initiated partners with neighborhood assistance groups and others to promote
Consumer Education financial literacy and educate consumers on the state’s antipredatory
Efforts lending statute. The Massachusetts Division of Banks maintains a toll-free
mortgage hotline to assist homeowners about potentially unethical and
unlawful lending practices. The hotline helps consumers determine
whether loan terms may be predatory and directs them to other sources of
information and assistance. The New York State Banking Department
distributes educational materials, including a video, that describe
predatory lending practices. The department has also conducted
educational outreach programs to community groups on the issue.
Nonprofits provide a significant portion of consumer financial education

on predatory lending, sometimes with support from federal, state, or local
agencies. These efforts include both general financial literacy programs
with a predatory lending component and initiatives that focus specifically
on predatory lending issues. For example, the National Community
Reinvestment Coalition, with funding support from HUD, distributes a
training module to help communities across the country educate
consumers about predatory lending.

Chapter 5
Some industry trade organizations and companies also have consumer

education initiatives related to predatory lending:
• Freddie Mac has developed the CreditSmart program in partnership

with universities and colleges. CreditSmart is a curriculum on credit
education that is available online and has been used in academic
programs and in community workshops, seminars, and credit education
campaigns. Freddie Mac also helps fund and promote the “Don’t
Borrow Trouble” campaign, a comprehensive public education
campaign with counseling services that is designed to help homeowners
avoid falling victim to predatory lenders. The campaign uses brochures,
mailings, posters, public service announcements, transit ads, and
television commercials. Its media toolkit and marketing consultant
services have been provided to the U.S. Conference of Mayors for use in
local communities.
• Fannie Mae supports financial literacy programs through its Fannie Mae
Foundation, which sponsors homeownership education programs that
focus on improving financial skills and literacy for adult students and at-
risk populations, such as new Americans and Native Americans. Fannie
Mae also offers a Web-based tool that allows home-buyers to compare
loan products and prices.
• The Jump$tart Program for Personal Financial Literacy, sponsored by a

coalition of corporations, industry associations—such as the Insurance
Education Foundation and the American Bankers Association
Education Foundation—and several government and nonprofit
agencies, includes a series of modules covering topics such as managing
debt and shopping for credit that are designed to improve the personal
financial literacy of young adults.
• The Mortgage Bankers Association of America, a trade association

representing mortgage companies and brokers and the real estate
finance industry, disseminates a package of information describing
some common warning signs of mortgage fraud and predatory lending, a
consumer’s bill of rights, and appropriate contacts for consumers who
believe they have been victimized by predatory lenders.
• The National Association of Mortgage Brokers makes presentations to

first-time homebuyers to educate them on the mortgage process and
credit reports, among other topics.

Chapter 5
• The American Financial Services Association’s Education Foundation

develops educational materials designed to improve consumers’ use of
credit and overall financial literacy.
Mortgage Counseling Can Mortgage counseling can be part of general “homeownership counseling”
Warn Borrowers of for new homeowners but may also be offered prior to a refinancing. It
gives borrowers an opportunity to receive personalized advice from a
Predatory Lending and Can
disinterested third party about a proposed mortgage or other loan. In
Offer a “Third Party” Review addition to providing general advice about the mortgage process and loan
of Proposed Mortgage products, counselors typically review the terms of proposed loans for
Loans potentially predatory characteristics. Studies evaluating the impact of
homeownership counseling have found that it helps homeowners maintain
ownership of their homes and avoid delinquencies, particularly when the
counseling is provided one on one.4 HUD supports a network of
approximately 1,700 approved counseling agencies across the country. The
agencies provide a wide variety of education and counseling services,
including homebuyer education and prepurchase counseling. HUD makes
grant funds available to some of these agencies, and a portion of these
funds has been earmarked exclusively for counseling for victims of
predatory lending.
A number of state antipredatory lending laws, such as those in New Jersey

and North Carolina, require some lenders to document that a borrower has
received counseling before taking out certain types of high-cost loans. In a
few cases, however, borrowers may waive their right to receive such
counseling. Several states, including Colorado, New York, and
Pennsylvania, require lenders to provide notice to borrowers of certain
loans that mortgage counseling is available and encourage them to seek it.
4
See, for example, Abdighani Hirad and Peter M. Zorn, “A Little Knowledge is a Good Thing:
Empirical Evidence of the Effectiveness of Pre-Purchase Homeownership Counseling,” in
Low-Income Homeownership: Examining the Unexamined Goal, ed. Nicolas P. Retsinas
and Eric S. Belsky (Washington, D.C.: Brookings Institution Press and Harvard University
Joint Center on Housing Studies, 2001), 2.

Chapter 5
A Variety of Factors May In testimony before Congress and elsewhere, representatives of the
Limit the Effectiveness of Mortgage Bankers Association, the Consumer Mortgage Coalition, and
other industry organizations have promoted the view that educated
Consumer Education and borrowers are more likely to shop around for beneficial loan terms and
Mortgage Counseling in avoid abusive lending practices. In searching the literature for studies on
Deterring Predatory the effectiveness of consumer financial education programs, we found
Lending evidence that financial literacy programs may produce positive changes in
consumers’ financial behavior.5 However, none of the studies measured the
effectiveness of consumer information campaigns specifically on deterring
predatory lending practices.
Limitations of Consumer The majority of federal officials and consumer advocates we contacted said
Education that while consumer education can be very useful, it is unlikely to play a
substantial role in reducing the incidence of predatory lending practices,
for several reasons:
• First, mortgage loans are complex financial transactions, and many

different factors—including the interest rate, fees, specific loan terms,
and borrower’s situation—determine whether the loan is in a borrower’s
best interests. Mortgage loans can involve dozens of different
documents that are written in highly technical language. Even an
excellent campaign of consumer education is unlikely to provide less
sophisticated consumers with enough information to properly assess
whether a proffered loan contains abusive terms.
• Second, abusive lenders and brokers may use high-pressure or “push

marketing” tactics—such as direct mail, telemarketing, and door-to-door
contacts—that are unfair, deceptive, or designed to confuse the
consumer. Broad-based campaigns to make consumers aware of
predatory lending may not be sufficient to prevent many consumers—
particularly those who may be uneducated or unsophisticated in
financial matters—from succumbing to aggressive sales tactics.
• Third, the consumers who are often the targets of predatory lenders are
also some of the hardest to reach with educational information. Victims
of predatory lending are often not highly educated or literate and may
5
See for example, B. Douglas Mernheim, Daniel M. Garrett, and Dean M. Maki, Education
and Saving: The Long-Term Effects of High School Financial Curriculum Mandates
(Cambridge, Mass.: National Bureau of Economic Research, 1997), 29-30.

Chapter 5
not read or speak English. Further, they may lack access to information
conveyed through the Internet or traditional banking sources, or they
may have hearing or visual impairments or mobility problems.
Limitations of Mortgage Consumer education campaigns have encouraged borrowers to seek

Counseling counseling before entering into a mortgage loan, particularly a subprime
refinancing loan. However, unreceptive consumers, lack of access to loan
documents, fraudulent lending practices, and the uneven quality of
counseling services can affect the success of these counseling efforts. For
instance, some consumers may simply not respond to counseling. Officials
at HUD have noted that not all first-time homebuyers avail themselves of
prepurchase counseling, and that some consumers who do attend
counseling sessions ignore the advice and information given to them.
Further, counselors may not have access to loan documents containing the
final terms of the mortgage loan. Although lenders are required to provide
a good-faith estimate of the mortgage terms, they are not required to
provide consumers with the final and fixed terms and provisions of a
mortgage loan until closing.6 Moreover, predatory lenders have been
known to manipulate the terms of a mortgage loan (sometimes called “bait
and switch”) so that the terms of the actual loan vary substantially from
that contained in the good faith estimate.
In addition, counseling may be ineffective against lenders and brokers that

engage in fraudulent practices, such as falsifying applications or loan
documents, that cannot be detected during a prepurchase review of
mortgage loan documents. Finally, the quality of mortgage counseling can
vary because of a number of factors. For example, one federal official cited
an instance of a mortgage company conducting only cursory telephone
counseling in order to comply with mandatory counseling requirements.
Although some states have mandated counseling for certain types of loans,
serious practical barriers would exist to instituting mandatory prepurchase
mortgage counseling nationally. HUD officials have noted that instituting a
mandatory counseling program for most regular mortgage transactions
nationwide would be an enormous and difficult undertaking that might not
6
For example, TILA requires federal lenders to make certain disclosures on mortgage loans
within 3 business days after the receipt of a written application. It also requires a final
disclosure statement at the time of closing that includes the contract sales price, principal
amount of the new loan, interest rate, broker’s commission, loan origination fee, and
mortgage and hazard insurance, among other things.

Chapter 5
be cost-effective. Lenders originated about 10 million mortgage loans in

2002 in the United States. The cost of providing counseling for all or many
of these loans would be high, and it is unclear who would or should be
responsible for paying it. In addition, there is a need for trained, qualified
counselors, according to federal officials and representatives of consumer
and advocacy groups, and currently no system exists for effectively
training large numbers of counselors while maintaining quality control.
HUD requires counseling for its reverse mortgages. These mortgages allow
homeowners to access the equity in their home through a lender, who
makes payments to the owner.7 Borrowers who receive a home equity
conversion mortgage insured through FHA must attend a consumer
information session given by a HUD-approved housing counselor.
Mandatory counseling for reverse mortgages may be reasonable because
these products are complex and subject to abuse. However, reverse
mortgages are also relatively uncommon; only approximately 17,610 HUD-
insured reverse mortgages were originated in fiscal year 2003.
Disclosures, Even If Federally mandated mortgage disclosures, while helpful to some

borrowers, may be of limited usefulness in reducing the incidence of
Improved, May Be of predatory lending practices. TILA and RESPA have requirements
Limited Use in concerning the content, form, and timing of information that must be
disclosed to borrowers. The goal of these laws is to ensure that consumers
Deterring Predatory obtain timely and standardized information about the terms and cost of
Lending their loans. Federal agencies, advocacy groups, and the mortgage industry
have said that mortgage disclosures are an important source of information
for borrowers, providing key information on loan terms and conditions and
enabling borrowers to compare mortgage loan products and costs.
Representatives of the lending industry in particular have said that
disclosures can play an important role in fighting predatory lending, noting
that clear, understandable, and uniform disclosures allow borrowers to
understand the terms of their mortgage loans and thus make more
informed choices when shopping for a loan.
However, industry and advocacy groups have publicly expressed

dissatisfaction with the current scheme of disclosures as mandated by
TILA and RESPA. A 1998 report by the Board and HUD concluded that
7
The loan is not repaid in full until the homeowner permanently moves out of the home,
passes away, or other specified events have occurred.

Chapter 5
consumers cannot easily understand current disclosures, that disclosures

are often provided too late in the lending process to be meaningful, that the
information in disclosures may differ significantly from the actual final loan
terms, and that the protections and remedies for violations of disclosure
rules are inadequate.8
Improving the disclosure of pertinent information has been part of efforts

under way over the last few years to streamline and improve the real estate
settlement process. HUD issued proposed rules in July 2002 to simplify
and improve the process of obtaining home mortgages and reduce
settlement costs for consumers. HUD stated that the proposed changes to
its RESPA regulations would, among other things, “make the good faith
estimate [settlement cost disclosure] firmer and more usable, facilitate
shopping for mortgages, make mortgage transactions more transparent,
and prevent unexpected charges to consumers at settlement.”9 Debate
over the proposed rules, which as of December 2003 were still under
review, has been contentious. Industry groups claim that the proposal
would help fight predatory lending by helping consumers understand loan
costs up front and thus enable consumers to compare products, or
comparison shop. Several advocacy organizations and an industry group
say the proposed rules would still allow unscrupulous mortgage originators
to hide illegal or unjustified fees.
Although streamlining and improving mortgage loan disclosures could help

some borrowers better understand the costs and terms of their loans, such
efforts may play only a limited role in decreasing the incidence of predatory
lending practices. As noted above, mortgage loans are inherently complex,
and assessing their terms requires knowing and understanding many
variables, including interest rates, points, fees, and prepayment penalties.
Brokers and lenders that engage in abusive practices may target vulnerable
individuals who are not financially sophisticated and are therefore more
susceptible to being deceived or defrauded into entering into a loan that is
clearly not in their interests. Even a relatively clear and transparent system
of disclosures may be of limited use to borrowers who lack sophistication
about financial matters, are not highly educated, or suffer physical or
mental infirmities. Moreover, as with prepurchase counseling, revised
8
Board of Governors of the Federal Reserve System and the Department of Housing and
Urban Development, Joint Report to the Congress Concerning Reform to the Truth In
Lending Act and the Real Estate Settlement Procedures Act (Washington, D.C.: July 1998).
9
See 67 Fed. Reg. 49134 (Jul. 29, 2002).

Chapter 5
disclosure requirements would not necessarily help protect consumers

against lenders and brokers that engage in outright fraud or that mislead
borrowers about the terms of a loan in the disclosure documents
themselves.

Chapter 6
Elderly Consumers May Be Targeted for

Predatory Lending Chapte6
r
Although little data is available on the incidence of predatory lending

among the elderly, government officials and consumer advocacy
organizations have reported consistent observational evidence that elderly
consumers have been disproportionately victimized by predatory lenders.1
Abusive lenders are likely to target older consumers for a number of
reasons, including the fact that older homeowners are more likely to have
substantial equity in their homes and may be more likely to have
diminished cognitive function or physical impairments that an
unscrupulous lender may try to exploit. Most educational material and
legal activity related to predatory lending targets the general population
rather than elderly borrowers in particular. Some federal agencies and
nonprofit organizations provide consumer education materials on
predatory lending that specifically target the elderly.
A Number of Factors Nearly all federal, state, and consumer advocacy officials with whom we
spoke offered consistent observational and anecdotal information that
Make Elderly elderly consumers have disproportionately been victims of predatory
Consumers Targets of lending. Little hard data exist on the ages of victims of predatory lending or
on the proportion of victims who are elderly. Nonetheless, several factors
Predatory Lenders explain why unscrupulous lenders may target older consumers and why
some elderly homeowners may be more vulnerable to abusive lenders,
including higher home equity, a greater need for cash to supplement limited
incomes, and a greater likelihood of physical impairments, diminished
cognitive abilities, and social isolation.
On average, older homeowners have more equity in their homes than

younger homeowners, and abusive lenders could be expected to target
consumers who have substantial home equity. 2 By targeting these owners,
unscrupulous lenders are more easily able to “strip” the equity from a
borrower’s home by including unjustified and excessive fees into the cost
1
No clear agreement exists on the age at which someone is considered “elderly.” While we
do not designate any specific age in this report with reference to the terms “older” or
“elderly,” we are generally referring to persons over the age of 65.
2
For example, a study by the Board found that in 1997, some 55 percent of the homeowners
who had fully paid off their mortgage were 65 years of age or older. See Glenn B. Canner,
Thomas A. Durkin, and Charles A. Luckett, “Recent Developments in Home Equity Lending,”
Federal Reserve Bulletin, April 1998, 241-51. Borrowers may have substantial equity in their
homes but still not qualify for a prime loan because their capacity to repay the loan is limited
or their credit score is beneath a certain threshold.

Chapter 6
Predatory Lending
of the home equity loan.3 Federal officials and consumer groups say that
abusive lenders often try to convince elderly borrowers to repeatedly
refinance their loans, adding more costs each time. “Flipping” loans in this
way can over time literally wipe out owners’ equity in their homes.
In addition, some brokers and lenders aggressively market home equity

loans as a source of cash, particularly for older homeowners who have
limited cash flows and can use money from a home equity loan for major
home repairs or medical expenses. In the overall marketplace it is
common, and can be advantageous, to tap into one’s home equity when
refinancing. However, unscrupulous brokers and lenders can take
advantage of an elderly person’s need for cash to steer borrowers to loans
with highly unfavorable terms.
Further, diseases and physical impairments associated with aging can

make elderly borrowers more susceptible to abusive lending. For example,
declining vision, hearing, or mobility can restrict elderly consumers’ ability
to access financial information and compare credit terms. In such
situations potential borrowers may be susceptible to the first lender to
offer what seems to be a good deal, especially if the lender is willing to visit
them at home or provide transportation to the closing. Physical
impairments like poor hearing and vision can also make it difficult for older
borrowers to fully understand loan documents and disclosures.
Similarly, while many older persons enjoy excellent mental and cognitive
capacity, others experience the diminished cognitive capacity and
judgment that sometimes occurs with advanced age. Age-related
dementias or mental impairments can limit the capacity of some older
persons to comprehend and make informed judgments on financial issues,
according to an expert in behavioral medicine at the National Institute on
Aging. Furthermore, a report sponsored by the National Academy of
Sciences on the mistreatment of elderly persons reported that they may be
more likely to have conditions or disabilities that make them easy targets
for financial abuse and they may have diminished capacity to evaluate
proposed courses of action. The report noted that these impairments can
3
For example, a loan might be offered to a borrower who owns a home worth $100,000 and
owes $20,000 from a previous mortgage. An abusive lender might refinance the loan for
$25,000 (providing the borrower with a $5,000 “cashout”) but then charge fees of $15,000,
which are financed into the loan. The borrower then would owe $40,000, but might not be
aware of the excessive fees that were charged because the monthly repayment schedule had
been spread over a much longer period of time.

Chapter 6
Predatory Lending
make older persons more vulnerable to financial abuse and exploitation. 4

Representatives of legal aid organizations have said that they frequently
represent elderly clients in predatory lending cases involving lenders that
have taken advantage of a borrower’s confusion and, in some cases,
dementia.
Finally, both the National Academy of Sciences report and representatives

of advocacy groups we spoke with noted that elderly people—particularly
those who live alone—may feel isolated and lonely, and may lack support
systems of family and friends who could provide them with advice and
assistance in obtaining credit. Such individuals may simply be more willing
to discuss an offer for a home equity loan made by someone who
telephones or knocks on their door, makes personal contact, or makes an
effort to gain their confidence. These personalized marketing techniques
are common among lenders and brokers that target vulnerable individuals
for loans with abusive terms.
Federal officials, legal aid services, and consumer groups have reported
that home repair scams targeting elderly homeowners are particularly
common. Elderly homeowners often live in older homes and are more
likely to need someone to do repairs for them. The HUD-Treasury report
noted that predatory brokers and home improvement contractors have
collaborated to swindle older consumers. A contractor may come to a
homeowner’s door, pressure the homeowner into accepting a home
improvement contract, and arrange for financing of the work with a high-
cost loan. The contractor then does shoddy work or does not finish the
agreed-on repairs, leaving the borrower to pay off the expensive loan.
The result of lending abuses, such as losing a home through foreclosure,

can be especially severe for the elderly. The National Academy of Sciences
report noted that losing financial assets accumulated over a lifetime can be
devastating to an elderly person, and that replacing them is generally not
viable for those who are retired or have physical or mental disabilities. The
financial losses older people can suffer as a result of abusive loans can
result in the loss of independence and security and a significant decline in
quality of life. Moreover, older victims of financial exploitation may be
4
Richard J. Bonnie and Robert B. Wallace, eds., “Elder Mistreatment: Abuse, Neglect, and
Exploitation in an Aging America,” Panel to Review Risk and Prevalence of Elder Abuse and
Neglect, National Research Council (Washington, D.C.: National Academies Press, 2003),
393.

Chapter 6
Predatory Lending
more likely to become dependent on social welfare services because they

lack the funds to help compensate them for their financial losses.
Elderly consumers represent just one of several classes of people that

predatory lenders appear to target. The HUD-Treasury task force report
noted that many predatory lenders also specifically target minority
communities. Consumer advocacy and legal aid organizations have
reported that elderly African American women appear to be a particular
target for predatory lenders. This population may be targeted by predatory
lenders at least in part because of their relatively low literacy levels—the
result of historical inequalities in educational opportunities—which, as
discussed earlier, may increase vulnerability to abusive lending.5
Some Education and Because elderly people appear to be more susceptible to predatory lending,
government agencies and consumer advocacy organizations have focused
Enforcement Efforts some educational efforts and legal assistance on this population. Several
Focus on Elderly booklets, pamphlets, and seminars are aimed at helping inform elderly
borrowers about predatory lending. In addition, while most legal activities
Consumers related to predatory lending practices are designed to assist the general
population of consumers, some have focused on elderly consumers in
particular.
Federal and Nonprofit Consumer financial education efforts of government and nonprofit
Agencies Sponsor Some agencies and industry associations generally seek to serve the general
consumer population rather than target specific subpopulations. However,
Financial Education Efforts some federal and nonprofit agencies have made efforts to increase
Targeted at Older awareness about predatory lending specifically among older consumers.
Consumers For example:
• DOJ has published a guide entitled Financial Crimes Against the

Elderly, which includes references to predatory lending. In 2000, the
5
For example, about 25 percent of elderly black Americans had graduated from high school
in 1992, compared with about 58 percent of elderly white Americans, and about 57 percent
of elderly black Americans were reported to have had fewer than 9 years of formal
education. See Robert Joseph Taylor and Shirley A. Lockery, “Socio-Economic Status of
Older Black Americans: Education, Income, Poverty, Political Participation and Religious
Involvement,” African American Research Perspectives 2 (1): 3-4.

Chapter 6
Predatory Lending
agency cosponsored a symposium that addressed, among other topics,

financial exploitation of the elderly.
• OTS has produced an educational training video addressing financial

abuse of the elderly.
• The U.S. Department of Health and Human Services’ Administration on

Aging provides grants to state and nonprofit agencies for programs
aimed at preventing elder abuse, including predatory or abusive lending
practices against older consumers. Supported activities include senior
legal aid programs, projects to improve financial literacy among older
consumers, and financial educational materials directed at senior
citizens.
• FTC publishes a number of consumer information products related to

predatory lending and home equity scams that discuss abusive practices
targeted at the elderly.
• AARP, which represents more than 35 million Americans age 50 and

over, offers a borrowers’ kit containing consumer tips for avoiding
predatory lenders, supports a toll-free number to call for assistance
regarding lending issues, and distributes fact sheets on predatory
lending. Some of these materials are provided in Spanish and in formats
accessible to the hearing- and visually impaired. AARP also provides
information on its Web site that is designed to educate older Americans
on predatory lending issues. In addition, the organization has
conducted focus groups of older Americans to gather data on their
borrowing and shopping habits in order to better develop strategies for
preventing older people from becoming the victims of predatory
lending.
• The National Consumer Law Center has developed a number of

consumer materials aimed in part at helping elderly consumers recover
from abusive loans, including a brochure titled Helping Elderly
Homeowners Victimized by Predatory Mortgage Loans.
Some Legal Assistance Is Federal consumer protection and fair lending laws that have been used to
Aimed Specifically at address predatory lending do not generally have provisions specific to
elderly persons. For example, age is not a protected class under the Fair
Helping Older Victims of
Housing Act, which prohibits discrimination in housing-related
Predatory Lending transactions. In addition, HMDA—which requires certain financial

Chapter 6
Predatory Lending
institutions to collect, report, and disclose data on loan applications and

originations—does not require lenders to report information about the age
of the applicant or borrower. However, ECOA does specifically prohibit
unlawful discrimination on the basis of age in connection with any aspect
of a credit transaction. In the case against Long Beach Mortgage Company
noted earlier, the lender was accused of violating ECOA by charging elderly
borrowers, among other protected classes, higher loan rates than it
charged other similarly situated borrowers.
Federal and state enforcement actions and private class-action lawsuits

involving predatory lending generally seek to provide redress to large
groups of consumers. Little hard data exist on the age of consumers
involved in these actions, but a few cases have involved allegations of
predatory lending targeting elderly borrowers. For example, FTC, six
states, AARP, and private plaintiffs settled a case with First Alliance
Mortgage Company in March 2002 for more than $60 million. According to
AARP, an estimated 28 percent of the 8,712 borrowers represented in the
class-action suit were elderly. The company was accused of using
misrepresentation and unfair and deceptive practices to lure senior citizens
and those with poor credit histories into entering into abusive loans. The
company used a sophisticated campaign of telemarketing and direct mail
solicitations, as well as a lengthy sales presentation that FTC said was
designed to mislead consumers in general and elderly consumers in
particular about the terms of its loans.
Some nonprofit groups provide legal services focused on helping elderly

victims of predatory lending:
• The AARP Foundation Litigation, which conducts litigation to benefit

Americans 50 years and older, has been party to 7 lawsuits since 1998
involving allegations of predatory lending against more than 50,000
elderly borrowers. Six of these suits have been settled, and the other is
pending.
• The National Consumer Law Center has a “Seniors Initiative” that seeks
to improve the quality and accessibility of legal assistance with
consumer issues for vulnerable older Americans. One focus of the
initiative is preventing abusive lending and foreclosure. The center
publishes a guide for legal advocates to help them pursue predatory
lending cases, and has been involved in litigation related to cases of
predatory lending against senior citizens.

Chapter 6
Predatory Lending
• Some local legal aid organizations that help victims of predatory lending
have traditionally served older clients. For example, the majority of
clients assisted by South Brooklyn Legal Services’ Foreclosure
Prevention Project are senior citizens.
The limited number of education and enforcement efforts related to

predatory lending that specifically target older consumers—as opposed to
the general population—is not necessarily problematic. Given limited
resources, the most efficient and effective way to reach various
subpopulations, including the elderly, is often through general education
and information campaigns that reach broad audiences. Similarly,
enforcement actions and private lawsuits that seek to curb the activities of
the worst predatory lenders in general are likely to aid the elderly
borrowers that these lenders may be targeting.

Appendix I
FTC Enforcement Actions Related to Appendx

ies
Predatory Lending Append

x
Ii
Primary defendant Date of settlementa Federal laws cited Alleged unfair or deceptive practices
Capital City Mortgage (litigation ongoing) FTC Act, TILA, ECOA, Fair Using deception/misrepresentation to manipulate
Corporationb Debt Collection Practices borrowers into loans, ECOA recordkeeping and
Act notice violations, unfair and deceptive loan
servicing violations
OSI Financial Services, November 2003 FTC Act Using deception/misrepresentation to charge
Inc., and Mark Diamondc excessive loan fees
First Alliance Mortgage March 2002 FTC Act, TILA Using deception/misrepresentation to charge
Companyd excessive loan fees
Associates First Capital September 2002 FTC Act, TILA, ECOA, Using deception/misrepresentation to manipulate
Corporation, Associates FCRA borrowers into loans, packing undisclosed
Corporation of North products (insurance) into loans, unfair debt
America, Citigroup Inc., and collection
CitiFinancial Credit
Company
Mercantile Mortgage July 2002 FTC Act, TILA, HOEPA, Using deception/misrepresentation to manipulate
Company, Inc.e RESPA, Credit Practices borrowers into loans, illegal kickbacks, HOEPA
Rule disclosure violations, taking unlawful security
interests
Action Loan Company, Inc.f August 2000 FTC Act, TILA, RESPA, Packing undisclosed products (insurance) into
Credit Practices Rule, loans, kickbacks for the referral of loans, ECOA
ECOA, FCRA violation for failing to meet requirements upon
adverse actions, taking unlawful security interest
FirstPlus Financial Group, August 2000 FTC Act, TILA Using deception/misrepresentation to manipulate
Inc. borrowers into home equity loans, TILA
disclosure violations
Nu West, Inc. July 2000 FTC Act, TILA, HOEPA HOEPA disclosure violations, right of rescission
violations
Delta Funding Corporation March 2000 HOEPA, RESPA, ECOA, Pattern or practice of asset-based lending and
and Delta Financial Fair Housing Act other HOEPA violations, paying kickbacks and
Corporationg unearned fees to brokers, intentionally charging
African American females higher loan prices than
similarly situated white males
Fleet Finance, Inc. and October 1999 FTC Act, TILA Failure to provide, or provide accurately, (1) timely
Home Equity USA, Inc. disclosures of the costs and terms of home equity
loans and/or (2) information to consumers about
their rights to cancel their credit transactions
Barry Cooper Properties July 1999 FTC Act, HOEPA Pattern or practice of asset-based lending and
other HOEPA violations
Capitol Mortgage July 1999 FTC Act, TILA, HOEPA HOEPA disclosure violations, right of rescission
Corporation violations
CLS Financial Services, July 1999 FTC Act, HOEPA Pattern or practice of asset-based lending and
Inc. other HOEPA violations
Granite Mortgage, LLC and July 1999 FTC Act, TILA, HOEPA Pattern or practice of asset-based lending and
others other HOEPA violations

Appendix I
FTC Enforcement Actions Related to
Predatory Lending
(Continued From Previous Page)

Primary defendant Date of settlementa Federal laws cited Alleged unfair or deceptive practices
Interstate Resource July 1999 FTC Act, HOEPA HOEPA disclosure violations
Corporation
LAP Financial Services, July 1999 FTC Act, TILA, HOEPA Pattern or practice of asset-based lending and
Inc. other HOEPA violations, right of rescission
violations
Wasatch Credit Corporation July 1999 FTC Act, TILA, HOEPA Pattern or practice of asset-based lending and
other HOEPA violations, right of rescission
violations
R.A. Walker and Associates July 1991 FTC Act Using deception/misrepresentation to convince
borrowers to transfer title to defendant
Nationwide Mortgage May 1988 FTC Act, TILA Using deception/misrepresentation to manipulate
Corporation borrowers into unaffordable loans with balloon
payments
Source: FTC.
Note: In addition to the cases listed, FTC has also recently addressed abuses in the mortgage loan
servicing industry. In November 2003, it announced settlements with Fairbanks Capital Holding Corp.,
its wholly owned subsidiary Fairbanks Capital Corp., and their founder and former CEO (collectively,
Fairbanks) on charges that Fairbanks violated the FTC Act, RESPA, and other laws by failing to post
consumers’ mortgage payments in a timely manner and charging consumers illegal late fees and other
unauthorized fees. The settlement will provide for $40 million in redress to consumers. The case was
jointly filed with HUD. United States of America v. Fairbanks Capital Corp. et al., Civ. Action No. 03-
12219-DPW (D. Mass.)(filed 11/12/03).
a
In some cases, the date of settlement listed is the date of the press release announcing the
settlement.
b
DOJ filed an amicus curiae brief in a private suit alleging discrimination in violation of the ECOA and
Fair Housing Act, which was joined with the FTC case, but settled separately.
c
The state of Illinois was also a plaintiff in this case.
d
The states of Arizona, California, Massachusetts, Florida, New York, Illinois, AARP, and private
attorneys were also plaintiffs in this case.
e
HUD and the state of Illinois were also plaintiffs in this case. Violations of Illinois state law were also
claimed.
f
HUD was also a plaintiff in this case, and DOJ formally filed the complaint on behalf of FTC and HUD.
g
DOJ and HUD were also plaintiffs in this case.

Appendix II
Comments from the Board of Governors of

the Federal Reserve System Appendx
Ii

Appendix II
the Federal Reserve System

Appendix II
the Federal Reserve System

Appendix III
Comments from the Department of Justice Appendx

iI

Appendix III
Comments from the Department of Justice

Appendix III
Comments from the Department of Justice

Appendix IV
Comments from the Department of Housing

and Urban Development Appendx
iIV

Appendix IV
and Urban Development

Appendix IV

Appendix IV

Appendix V
Comments from the National Credit Union

Administration Append
x
i
V

Appendix V
Comments from the National Credit Union
Administration

Appendix VI
GAO Contacts and Staff Acknowledgments Appendx

iVI
GAO Contacts David G. Wood, (202) 512-8678

Harry Medina, (415) 904-2000
Staff Jason Bromberg

Emily R. Chalmers
Acknowledgments Randall C. Fasnacht, Jr.
Rachelle C. Hunt
Alison J. Martin
Marc W. Molino
Elizabeth Olivarez
Carrie Puglisi
Mitchell B. Rachlis
Peter Rumble
Paul Thompson
James D. Vitarello
(250118) Page 120 GAO-04-280 Predatory Lending

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United States General Accounting Office

GAO Report to the Chairman and Ranking

Federal and State Agencies Face

Page i GAO-04-280 Predatory Lending

Page ii GAO-04-280 Predatory Lending

Appendix VI: GAO Contacts and Staff Acknowledgments 120

Table Table 1: Preemption Determinations Issued by OCC, OTS, and

Figures Figure 1: Federal Laws and Statutes Used to Address Lending

CRA Community Reinvestment Act

Page iii GAO-04-280 Predatory Lending

January 30, 2004 T

The Honorable Larry E. Craig

This report responds to your request that we evaluate issues related to

As agreed with your office, we plan no further distribution of this report

Page 1 GAO-04-280 Predatory Lending

Page 2 GAO-04-280 Predatory Lending

Background While there is no uniformly accepted definition of predatory lending, a

Page 3 GAO-04-280 Predatory Lending

misinforming borrowers about the terms of a loan.1 These types of

Serious data limitations make the extent of predatory lending difficult to

Page 4 GAO-04-280 Predatory Lending

Federal Trade Commission (FTC) has played a prominent role because it is

According to a database that tracks state and local legislation, 25 states,

Page 5 GAO-04-280 Predatory Lending

The secondary market for mortgage loans—which allows lenders and

A number of federal, state, nonprofit, and industry-sponsored organizations

Page 6 GAO-04-280 Predatory Lending

also hinders these efforts, especially given the lack of financial

While there are no comprehensive data, government officials and

Page 7 GAO-04-280 Predatory Lending

Using these or other authorities, federal agencies have taken a number of

• Among federal agencies, FTC has a prominent role in combating

• HUD has undertaken enforcement activities related to abusive lending

Page 8 GAO-04-280 Predatory Lending

• Federal banking regulators have stated that their monitoring and

• The banking regulators have also issued guidance to the institutions

Federal agencies and banking regulators have coordinated their efforts to

Issues related to federal oversight and regulation of certain nonbank

Page 9 GAO-04-280 Predatory Lending

responsibilities. In contrast, the Board conducts periodic examinations of

Some states have also increased the regulation of and licensing

Page 10 GAO-04-280 Predatory Lending

Three federal banking regulators—NCUA, OCC, and OTS—have issued

Purchasers of mortgage loans undertake a process of due diligence

Page 11 GAO-04-280 Predatory Lending

loans with abusive characteristics that may have harmed borrowers. In

Under some state and local legislation, purchasers of mortgages or

Page 12 GAO-04-280 Predatory Lending

providing institutions they regulate with guidance on encouraging financial

While representatives of the mortgage lending industry and consumer

Prepurchase mortgage counseling—which can offer a “third party” review

Page 13 GAO-04-280 Predatory Lending

Finally, disclosures made during the mortgage loan process, while

Because the elderly may be more susceptible to predatory lending,

Page 14 GAO-04-280 Predatory Lending

Page 15 GAO-04-280 Predatory Lending

DOJ commented that the report will be helpful in assessing the

Page 16 GAO-04-280 Predatory Lending

flipping—the rapid and repeated refinancing of a loan without benefit to

FDIC noted that our Matter for Congressional Consideration focuses on

Page 17 GAO-04-280 Predatory Lending

In recent years, abuses in home mortgage lending—commonly referred to

• Excessive interest rates. Mortgage interest rates can legitimately vary